Petition for Writ of Certiorari — Corus Staal BV v. United States (No. 06-1057)
Supreme Court brief2006
Ask Donna
What actually matters in this document.
Text
No.06-_ (61027 °° * 2097
AOS sae
CF “ae ae es ae
IN THE
Supreme Court of the Anited States
CORUS STAAL BY.
Petitioner.
¥.
UNITED STATES OF AMERICA
AND UNITED STATES STEEL CORPORATION,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Federal Circuit
PETITION FOR A WRIT OF CERTIORARI
RICHARD OLAF CUNNINGHAM *
JOEL DENNIS KAUFMAN
ALICE ALEXANDRA KIPEL
WILLIAM GEORGE ISAS!
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue. N.W.
Washington. D.C. 20036
(202) 429-3000
* Counsel of Record Counsel for Petitioner
Corus Staal BV
WILSON-EPES PRINTING CO . INC — (202) 789-0096 -— WASHINGTON. D C. 20002
QUESTION PRESENTED
Whether a court reviewing an agency determination that
implicates the international obligations of the United States
under the World Trade Organization Agreements must re-
mand that determination to the agency because the agency
has announced an intervening change in policy affecting that
determination.
ii
RULE 29.6 CORPORATE DISCLOSURE STATEMENT
Petitioner is Corus Staal BV, a Dutch manufacturer of steel
and other products. Corus Staal BV is 100% owned by Corus
Investment BV, which is 100% owned by Koninklijke
Hoogovens NV (now Corus Nederland BV), which is 100%
owned (through its ownership interest in Corus CNBV
Investments BV (19%) and Corus Property Ltd. (81%)) by
Corus Group plc, a publicly owned company whose shares
are listed on the New York, London, and Amsterdam stock
exchanges.
TABLE OF CONTENTS
Page
CUTIES FIRS BF SRRESEY 8 Cob vvcccnscesosserepencessnoneeveieventevesots i
RULE 29.6 CORPORATE DISCLOSURE
ROWE TEE, sucupiisissshochincnastauecsetlaniesaieliniaahipamigucnnan il
TAREE Ge ALF RTS wenisseenceveessceceveciesescsuveseennaes vi
OPINIONS AND ORDERS BELOW... l
A eR chet tcssctirciiceninhieatnieeiayceteuamnaiaadinuniaieiis 2
SEAR BAF eee BEEN ike Fi cccccsncnsinioncotgiescnseininnéinetidwctinn 2
FOU CUUETS itiicstcsdsdcnssaidascdlcctaranictnsepshiaicapabemanaida 2
A. Background on Antidumping Procecdings........ 4
B. Commerce’s Intervening Change in Policy....... 6
C. Implementation Considerations Resulting from
ae CE Be FG ences cccissicnetisersictncnincatinasebic 9
REASONS FOR GRANTING THE PETITION........... i]
I. THE FAILURE TO REMAND BELOW
VIOLATES IN PRINCIPLE A DECISION
OF THIS COURT AND CONFLICTS IN
PRINCIPLE WITH THE DECISIONS OF
THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT............ 13
A. This Court Has Established the Principle
that a Court Reviewing an Agency Deter-
mination Following an Intervening Change
of Policy Must Remand to the Agency........ 13
B. Consistent with this Court’s Precedent, the
Court of Appeals for the District of
Columbia Circuit Has Repeatedly Held
that a Court Reviewing an Agency Deter-
mination Following an Intervening Change
of Policy Must Remand to the Agency........ 14
(iii)
iV
TABLE OF CONTENTS—Continued
C. The Failure To Remand Below Is in Direct
Conflict with the Remand Principle Estab-
lished by this Court and Followed by the
District of Columbia Circr't ...00.......ce eee
I]. THE FAILURE TO REMAND JIS OF GREAT
IMPORTANCE BECAUSE IT DIRECTLY
IMPLICATES THE UNITED STATES’
INTERNATIONAL OBLIGATIONS UNDER
THE WTO AGREEMENTS ........... ees eeseeeeeeeee
Ill. THE FAILURE TO REMAND IS OF GREAT
IMPORTANCE BECAUSE THE FOOD
STORE EMPLOYEES UNION ISSUE IS
LIKELY TO RECUR IN VARIOUS
AGENCY PROCEEDINGS, IN FUTURE
WTO DISPUTES, AND IN A PENDING
APPENDICES
APPENDIX A
Orders of the Federal Circuit -
Order Denying Petition for Rehearing and
PEE TE OE Siisiiiccrcinnsiiciinnnsioticetingetiantapanesss
Order Without Opinion Affirming Court of
III FOOD ive csscsicrictcnscsaninnsenencteatonen
APPENDIX B
Opinion of the Court of International Trade..............
APPENDIX C
Department of Commerce Amended Final
BP NNUII III sss tcobiensticcshoncicgntelecacecitniiitetinahebencotpuhio
Page
16
19
23
27
la
2a
Vv
TABLE OF CONTENTS—Continued
Page
APPENDIX D
Department of Commerce Final Determination ........ 35a
APPENDIX E
SW NIN ss scoiccn ce sassxesncsvveesinctensenasseendiinnaes 45a
Oe Re aa. OF AE siishincnshaedbéccscaisibotatixdscincnlacpeniests 45a
FOr as BP es ieh ies tessincsncsivesaadisaiceiniatecaediondyus 49a
APPENDIX F
Corus’ Petition for Rehearing En Banc Before the
Se FR I es vncciits secanstnascscesiciacnssiinvnensnvednane 54a
APPENDIX G
European Communities’ Request for a WTO Panel
OE SEE FUE isdiiecsicseahccdcncsssvenisccertamnentancucunarte 75a
APPENDIX H
U.S. Statements before WTO Dispute Settlement
Body Agreeing To Implement U.S.-Zeroing......... 105a
APPENDIX I
Department of Commerce Federal Register Notice
Announcing Change in Zeroing Methodology... 109a
APPENDIX J
Department of Commerce Federal Register Notice
Confirming Change in Zeroing Methodology........ 114a
APPENDIX K
Second Written Submission of the United States in
SOCHON 129 WIO CHA CIRG viccsccansccovcccssenireosicnesace 129a
vi
TABLE OF AUTHORITIES
CASES Page
Corus Staal BV vy. Dep’t of Commerce, 395 F.3d
1343 (Fed. Cir. 2005), cert. denied, 126 S. Ct.
Dini ciiechakevubntesiplidenbninanateaiiabaiiibabiiinongs 21
Corus Staal BV v. U.S. Dep’t of Commerce, 259
F. Supp. 2d 1253 (Ct. Int’] Trade 2003)............. 7
Federal Maritime Bd. v. Isbrandtsen Co., 356
Ack, ME 6 OPINED cc crinincnsescinsccinssnniiaraoncaatsseniaoriee 20
Jilin Henghe Pharm. Co. v. United States,
342 F. Supp. 2d 1301 (Ct. Int’l Trade 2004),
vacated as moot, 123 Fed. Appx. 402 (Fed.
Ba Ne aides sis ctbeeserrshciesavensibpdiceidialasasivelioaniiceiiia 18
Motor Vehicles Mfrs. Ass’n v. State Farm Mutual
Auto. Ins. Co., 463 U.S. 29 (1983) 0... eens 15
Murray v. Schooner Charming Betsy, 6 U.S. (2
eo fh, | ee eae 20
NLRB v. Food Store Employees Union, 417 U.S.
Br ee ihcckisscivccniientinciuukienenepedinticnonineenancaieitiea passim
Panhandle Eastern Pipe Line Co. v. FERC, 890
ee ae Ce Gis. FE vist ccinicdotaititinannentons 14,17
Thorpe v. Housing Auth., 393 U.S. 268 (1969)..... 15
United States v. Curtiss-Wright Export Corp.,
ks PE CEN ciintestncsiniinbetsiaidigamenictianitts 20
Williston Basin Interstate Pipeline Co. v. FERC,
DGS F356 SE IG. Cit, BSF iis vsscevvcicivevesivcessaces 14,17
FEDERAL STATUTES
Be RIED saccersensicsevscsesasntvypeeroinecnies 6
a tas Cot asd piuicersiwinsscesiennsickevbennceciainiioneescuai 3
Re IED a cceccchiernneisciennsentiasnbeinieneetansions 4
ens Ae EE Bs rxennthanivtinceeteciicinsontonteteermnninats 4
Ores i FINED vpnirccrissscisnainseneveresabnioheetinene 5
tars VEILED setter secsivevticsniienvsvesnpneoncentien 2,5, 8
a SID ocho sosirenesickenaspiabenuaamnprsoniasiuas 6
Vil
TABLE OF AUTHORITIES—Continued
Page
Foe Seis Oe SUES ID checievsciceinsiiaiisapicaniodionieuiabadias 5
SF Raita TIE ED savisccrcsmccietnssbionscarcebuniiagnonnte 5 s
FF AF ins, PT AIUD ndenisncnccncnceiestursateciionntinns +
GF rs eB eR tciernckcddtnepanndigerneridinagiaia 4
ae een Oe Oe RE istatthsnvcnetceceesenicstiiaieosabialiaa 8
Oe Epis: OPE acctintasievancicndcncanteneiemudeaiaiiiieaiaads 2
ees: Oe itech secniacaentcannachieoiniasivnciuiaiide 9,19
Be Ae ies ik ciaissasshcin ars bicnneaivinnintininncsconiuilinta 2, 9, 19
er reise I ceicccisiniocectuiiseennnieepencshcadunhaniadinn 9
Se Sh Rae OF SL itive bnbsisininidinrenibrcilinbancivigabteiiies | 2
Se ease Oe NE sees ev ine ceunibtccclatoactaainianenizediadediane 26
FB tide GE . ”, > | SRNODE n ED cP 12, 25
Be hie CE winnie trsbccnarenenneccisiateiapsietaaioue tte I
Fe ce cn cionaesbnaieotidenacisnotaactenbschomadachias 25
ADMINISTRATIVE DETERMINATIONS
Antidumping Proceedings: Calculation of the
Weighted Average Dumping Margin During
an Antidumping Duty Investigation, 71 Fed.
Reg. 11,189 (Dep’t of Commerce Mar. 6,
PN aiid tiliciie niuictecaabisctiniiaieancietinabiasae aatcisibem cies 7,8
Antidumping Proceedings: Calculation of the
Weighted-Average Dumping Margin During
an Antidumping Investigation, 71 Fed. Reg.
77,722 (Dep’t of Commerce Dec. 27, 2006)..... 9,18
Certain Hot-Rolled Carbon Steel Flat Products
from the Netherlands, 66 Fed. Reg. 59,565
(Dep’t of Commerce Nov. 29, 2001)................. 1]
Certain Hot-Rolled Carbon Steel Flat Products
from the Netherlands, 69 Fed. Reg. 33,630
(Dep’t of Commerce June 16, 2004) (final
admin. rev.), as amended by 69 Fed. Reg.
43,801 (Dep’t of Commerce July 22, 2004)...... 2,6
Vill
TA 2LE OF AUTHORITIES—Continued
INTERNA1# * (AL AUTHORITIES
Appellate Body Report, United States-Laws,
Regulations, and Methodology for Calculating
Dumping Margins (“Zeroing”), WT/DS294/
FARE CARE, TE, BOA vikionissscestcenihaviediaiiniins
Appellate Body Report, United States-Measures
Relating to Zeroing and Sunset Reviews,
WT/DS322/AB/R (Jan. 9, 2007) .o.cc eee ceeeeeeeee
Panel Report, United States-Section 129(c)(1)
of the Uruguay Round Agreements Act,
WT/DS221/R (July 15, 2002)....c.ccccocieseccesecceeses
Request for the Establishment of a Panel by the
European Communities, United States-Laws,
Regulations and Methodology for Calculating
Dumping Margins (“Zeroing”), WT/DS294/
FORGE GD, FB, Fe ssicsesssscareenisciunesiatonnees
Second Written Submission of the United States,
United States-Section 129(c)(1) of the Uru-
guay Round Agreements Act, WT/DS221
CG FE, DN wscicccirstivceceishsaicinc ee cncaoldanius
REGULATIONS
DF Cee © Bet Fea inccetssaveicisescinsasanbacendeomaen
PCF BS FOF ED vcisicintninuimsristmntitaasilaiiine
OTHER AUTHORITIES
2 Federal Procedure - Lawyers Edition § 2:394
AID A isicssnk ciicbdassecscetertetoacinsmmiicdiemast ceuaciasae ata
Alfred C. Aman, Jr. & William T. Mayton,
Administrative Law § 12.11 (2d ed. 2001)........
Page
7,8
10, 18
IN THE
Supreme Court of the Anited States
CORUS STAAL BV,
Petitioner,
V.
UNITED STATES OF AMERICA
AND UNITED STATES STEEL CORPORATION,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Federal Circuit
PETITION FOR A WRIT OF CERTIORARI
Petitioner, Corus Staal BV (“Corus”), respectfully prays
that this Honorable Court issue a writ of certiorari to the U.S.
Court of Appeals for the Federal Circuit.
OPINIONS AND ORDERS BELOW
The judgment of the Court of Appeals was entered without
opinion on June 13, 2006 and is reported at 186 Fed. Appx.
997. App. 2a. The order of the court of appeals denying the
petition for rehearing and rehearing en banc is unreported.
App. la.
The opinion of the U.S. Court of International Trade is
reported at 387 F. Supp. 2d 1291. App. 3a.
2
The final determination of the U.S. Department of Com-
merce is reported at 69 Fed. Reg. 33,630 (June 16, 2004)
(App. 35a), as amended 69 Fed. Reg. 43,801 (July 22, 2004)
(App. 28a).
JURISDICTION
The judgment of the court of appeals was entered on June
13, 2006. App. 2a. On September 12, 2006, the court of
appeals entered an order denying Corus’ timely petition for a
rehearing and rehearing en banc. App. la. On November 30,
2006, the Chief Justice granted Corus’ application for an
extension of time within which to file a petition for a writ of
certiorari to and including January 25, 2007. The jurisdiction
of this Court is invoked pursuant to 28 U.S.C. § 1254(1).
STATUTES INVOLVED
The Tariff Act of 1930, as amended, provides in relevant
part: “If the determinations of the administering authority
and the Commission under subsections (a)({1) and (b)(1) of
this section are affirmative, then the administering authority
shall issue an antidumping duty order under section 1673e(a)
of this title. If either of such determinations is negative, the
investigation shall be terminated upon the publication of
notice of that negative determination and the administering
authority shall-- (A) terminate the suspension of liquidation
under section 1673b(d)(2) of this title, and (B) release any
bond or other security, and refund any cash deposit, re-
quired under section 1673b(d)(1)(B) of this title. 19 U.S.C.
§ 1673d(c)(2).
The relevant provisions of the Uruguay Round Agreements
Act, 19 U.S.C. §§ 3533 and 3538, are reproduced at App.,
infra, 4Sa.
STATEMENT
This case presents an important question of administrative
law with significant implications for the United States’
3
international obligations under the World Trade Organization
(“WTO”) Agreements. Under established precedent of this
Court, a reviewing court must remand an agency determi-
nation when an agency announces an intervening change of
policy. NLRB v. Food Store Employees Union, 417 US. 1,
10 & n.10 (1974). This remand is necessary so that the
agency can determine, in the first instance, whether the
change in policy applies to the agency determination under
judicial review.
The U.S. Court of Appeals for the Federal Circuit ignored
this rule.' Instead, despite an intervening change in policy
announced by the U.S. Department of Commerce (“Com-
merce’) on an issue likely dispositive of the pending appeal,
the Federal Circuit decided without opinion that a remand of
an antidumping decision was not warranted. This refusal to
remand has limited the implementation of this change in
policy by effectively precluding the change in policy from
affecting the Commerce decision under review.
The consequences of the Federal Circuit’s refusal to
remand are serious and require this Court to grant this peti-
tion. First, Commerce announced the change in policy in
order to bring the United States into conformity with its
international obligations under the WTO Agreements. The
Federal Circuit’s failure to remand limits Commerce’s ability
to implement the change in policy and thereby contradicts the
congressionally-mandated implementation process for ad-
verse WTO reports, which places the responsibility for
implementation of such reports with the Executive Branch in
consultation with Congress. In addition, because the anti-
dumping proceeding undergoing Federal Circuit review and
the announced change in policy directly implicate the United
States’ international obligations under the WTO Agreements,
' The appeal to the Federal Circuit followed review by the Court of
International Trade pursuant to 19 U.S.C. § 151l6a and 28 U.S.C.
§ 1581 (c).
4
the Federal Circuit’s failure to remand violates constitutional
separation of powers considerations, which recognize the sole
competency of the Executive Branch in conducting the for-
eign affairs of the United States. Finally, the issue presented
here is likely to arise in various agency proceedings, in future
WTO disputes, and in at least one case pending before the
Federal Circuit.
A. Background on Antidumping Proceedings
The Petitioner, Corus, is a Dutch steel producer. Certain of
Corus’ exports of steel to the United States have been subject
to antidumping duties for more than five years pursuant to an
antidumping determination that the WTO recently ruled vio-
lated the United States’ international trade obligations.
“Dumping” refers to the sale of foreign goods at less than
fair value. Generally, dumping is determined by comparing
the price of the imported good in the United States to the
price of the good in the home market. The lower the U.S.
price is in relation to the home market price, the greater the
dumping margin.” Under U.S. law, foreign producers or ex-
porters who sell dumped products in the United States may be
subject to antidumping duties. The agency responsible for
determining whether dumping is occurring, as well as estab-
lishing the level of antidumping duties to apply to imports, is
Commerce. 19 U.S.C. §§ 1673(1) & 1675(a)(2)(C). In addi-
tion to a dumping determination, U.S. law requires a finding
that imports cause injury (or threaten to cause injury) to a
U.S. industry before antidumping duties may be imposed. 19
U.S.C. § 4673(2). The agency responsible for making injury
determinations is the U.S. International Trade Commission
(“the Commission”). 19 U.S.C. § 1673(2).
? See 19 U.S.C. § 1677(35) (defining a dumping margin as a compari-
son between “normal valuc” (home market price) and export price or
constructed export price (U.S. price)).
5
Commerce administers the antidumping law through anti-
dumping “proceedings.” 19 C.F.R. § 351.102. These pro-
ceedings are divided into several “segments.” Jd. The first
segment is an antidumping investigation where Commerce
determines if dumping is occurring. If Commerce makes an
affirmative dumping determination and the Commission
makes an affirmative injury determination, Commerce issues
an antidumping order on the dumped product. 19 U.S.C.
§ 1673d(c)(1). If Commerce makes a negative dumping de-
termination, e.g., determines that goods have been sold at fair
value, or the Commission makes a negative injury deter-
mination, then no dumping order issucs and the antidumping
procecding is terminated. 19 U.S.C. § 1673d(c)(2).
U.S. law further provides that, in a separate segment of the
antidumping proceeding, through “administrative reviews,”
antidumping orders may be reviewed on an annual basis. 19
U.S.C. § 1675(a)(1). During the review process, Commerce
examines the sales from the “period of review” (e.g., the prior
twelve months) to determine the level of dumping for that
period. The final rate of antidumping duties for goods that
entered the United States during the period of review is based
on the results of the administrative review. 19 U.S.C.
§ 1675(a)(2)(C). If Commerce does not find dumping during
the review, the final rate is zero and no antidumping dutics
are collected.
Antidumping duties are assessed on dumped imports
through a cash deposit system. As imports subject to an
antidumping order entcr the United States, the importer posts
cash deposits based on the level of dumping established in the
most recently completed administrative revicw in the anti-
dumping proceeding. 19 U.S.C. § 1673g(a). These cash de-
posits are held by U.S. Customs and Border Protection
(“Customs”) until Commerce completes the administrative
review for the period of review in which the imports entered
the United States. Once the administrative review is com-
6
pleted, the duties are “liquidated,” or finally assessed, based
on the results of the administrative review. 19 U.S.C.
§ 1675(a(2)(C). If the liquidated duties are greater than the
cash deposits, additional duties plus interest are assessed on
the importer. 19 U.S.C. § 1673f(b). If the liquidated duties
are less than the cash deposits, duties are refunded to the
importer with interest. Jd. Liquida*‘on is largely a final act
that cannot be reversed. 19 U.S.C. § 1514(a)&(b). Thus, the
U.S. Court of International Trade routinely grants preliminary
injunctions in order to prevent liquidation during the pen-
dency of litigation arising from the antidumping proceeding.
Once the litigation is concluded and the preliminary
injunction is lifted, liquidation occurs based on the results of
the litigation.
B. Commerce’s Intervening Change in Policy
This case arises out of the first administrative review”
within the antidumping proceeding on hot rolled steel from
the Netherlands (“Dutch Steel Antidumping Proceeding”).
Corus challenged the first administrative review results
before the Court of International Trade (App. 3a) and the
Federal Circuit (App. 2a), arguing that application of anti-
dumping duties to its steel products was contrary to U.S. law.
Both courts rejected Corus’ arguments and affirmed Com-
merce’s results. Jd.
After briefing, but before the Federal Circuit entered
judgment without opinion, Commerce announced an impor-
tant change in policy for antidumping proceedings. Com-
merce announced that it was abandoning its long-standing
* Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands,
69 Fed. Reg. 33,630 (Dep’t of Commerce June 16, 2004) (final admin.
rev.) (App. 35a), as amended by 69 Fed. Reg. 43,801 (Dep't of Com-
merce July 22, 2004) (am. final admin. rev.) (App. 28a).
7
policy of “zeroing” in antidumping investigations.* More-
over, as described below, Commerce also agreed to imple-
ment this change in policy in the Dutch Steel Antidumping
Proceeding.
Under the zeroing policy, Commerce does not give full
effect to sales made at fair value. Rather, the difference
between normal value and the U.S. price is set to zero when
the U.S. price is at or above fair value. Commerce employed
this policy in the vast majority of antidumping investigations,
including the Dutch Steel Antidumping Investigation. It is
uncontested that, if Commerce had not employed zeroing,
Commerce would have made a negative dumping deter-
mination in the Dutch Steel Antidumping Proceeding.” That
is, Commerce was able to make an affirmative dumping
determination in the Dutch Steel Antidumping Proceeding
only because it did not give full effect to Corus’ sales made at
or above fair value. Without an affirmative dumping deter-
mination, Commerce has no legal authority to impose an
antidumping order or conduct administrative reviews and
* Antidumping Proceedings: Calculation of the Weighted Average
Dumping Margin During an Antidumping Duty Investigation, 71 Fed.
Reg. 11,189 (Dep’t of Commerce Mar. 6, 2006). App. 109a.
* See Request for the Establishment of a Panel by the European Com-
munities, United States-Laws, Regulations and Methodology for Calcu-
lating Dumping Margins (“Zeroing”), WT/DS294/7/Rev.1 (Feb. 19,
2004) (“Zeroing Panel Request”). App. 75a. In this request, the
European Communities identified those antidumping proceedings for
which Commerce would not have calculated a dumping margin (/.e.,
Commerce would have “calculated a negative margin”) but for zeroing.
Included among the identified proceedings is the Dutch Steel Anti-
dumping Proceeding. Zeroing Panel Request, WT/DS294/7/Rev.1, at 7
(“Specific Case No. 1”). App. 84a. The United States has not disputed
that, without zcroing, the Dutch Steel Antidumping Investigation deter-
mination would have been negative. See, e.g., Corus Staal BV v. U.S.
Dep't of Commerce, 259 F. Supp. 2d 1253, 1260 & n.8 (Ct. Int’! Trade
2003).
8
Commerce must terminate the antidumping proceeding. 19
U.S.C. § 1673d(c)(2). Thus, as a result of the change in zero-
ing policy, the legal basis for the Dutch Steel Antidumping
Proceeding—including the administrative review upon
which this petition is based—now must be reexamined by
Commerce. |
Commerce announced the abandonment of zeroing® in
response to a challenge to zeroing brought against the United
States under the WTO Agreements (“U.S. -Zeroing”).’ This
WTO dispute included both a facial challenge (referred to in
WTO litigation as an “as such” challenge) and as applied
challenges to zeroing in fifteen antidumping investigations
and sixteen administrative reviews. Included among the as
applied challenges was the Dutch Steel Antidumping
Investigation. App. 84a. As a result of the dispute, the
WTO’s highest decisional body, the WTO Appellate Body,
ruled zeroing to be a violation of the United States’
obligations under the WTO Agreements both on an as such
basis in antidumping investigations and as applied in the
° Specifically, Commerce announced that it would no longer utilize
zeroing in average-to-average price comparisons conducted during anti-
dumping investigations. Antidumping Proceedings: Calculation of the
Weighted Average Dumping Margin During an Antidumping Duty
Investigation, 71 Fed. Reg. at 11,189. App. 109a. U.S. law provides
Commerce with additional comparison methodologies (e.g., transaction-
to-transaction comparisons). 19 U.S.C. § 1677f-1(d). These other
comparison methodologies are not relevant to the instant case because
they are only used in unusual circumstances which Commerce has not
found in the Dutch Steel Antidumping Proceeding. See 19 C.F.R.
§ 351.414(c). Additionally, to the extent that Commerce would consider
employing an alternative comparison methodology in implementing U.S.-
Zeroing, Commerce could not zero because the WTO Appellate Body has
ruled zeroing under alternative comparison methodologies to be a facial
(or “as such’) violation of the WTO Agreements. Appellate Body Report,
United States-Measures Relating to Zeroing and Sunset Reviews, 4 190,
WT/DS322/ AB/R (Jan. 9, 2007).
” Zeroing Panel Request, WT/DS294/7/Rev.1. App. 75a.
9
challenged antidumping investigations and administrative
reviews.” On May 30, 2006, the United States formally
announced to the WTO that it would implement fully the
U.S.-Zeroing WTO Report. App. 10S5a.
C. Implementation Considerations Resulting from the
Change in Policy
Changes in policy made in order to implement WTO
reports are governed by Section 123 of the Uruguay Round
Agreements Act.’ Commerce announced its abandonment of
zeroing under this statutory provision.'° Redeterminations of
Commerce antidumping decisions in response to as applied
WTO challenges are governed, in part, by Section 129 of the
Uruguay Round Agreements Act. 19 U.S.C. § 3538. App.
49a. In implementing U.S.-Zeroing, Commerce will have to
make Section 129 determinations for each of the challenged
antidumping investigations and administrative reviews, in-
cluding the Dutch Steel Antidumping Investigation.
Section 129 determinations apply to goods that enter the
United States on or aftersthe date on which the U.S. Trade
Representative (“USTR”) directs Commerce to implement the
Section 129 determination. 19 U.S.C. § 3538(c). App. 52a.
No provision of U.S. law speaks directly to how the United
States should implement WTO decisions as to goods that
8
Appellate Body Report, United States-Laws, Regulations, and
Methodology for Calculating Dumping Margins (“Zeroing”), § 263,
WT/DS294/AB/R (Apr. 18, 2006).
* 19 U.S.C. § 3533(g). App. 47a. The Uruguay Round Agreements
Act gives legal effect to the WTO Agreements under U.S. law.
'° App. 109a. Commerce recently published in the Federal Register a
final notice under Section 123 of the Uruguay Round Agreements Act
confirming that it has abandoned its zeroing policy. Antidumping
Proceedings: Calculation of the Weighted-Average Dumping Margin
During an Antidumping Investigation, 71 Fed. Reg. 77,722 (Dep’t of
Commerce Dec. 27, 2006) (final modification). App. | 14a.
10
enter the United States prior to USTR authorization. Thus, in
implementing a WTO report, one important issue that
Commerce must decide is how such an implementation will
affect goods that have previously entered the United States
but remain unliquidated. This is particularly the case when
the new WTO-consistent policy will result in the revocation
of an antidumping order. In such an instance, Commerce
would have to determine how revocation of the order would
apply to previously entered but unliquidated entries. In a
WTO challenge that analyzed the Section 129 implemen-
tation process, the United States expressly recognized the
need for Commerce to undertake such an analysis:
The second scenario . . . is a situation where the WTO
challenge results in the revocation of antidumping or
countervailing duty order because the new, WTO-
consistent determination results in a finding of no injury,
no dumping, or no subsidization. Under the terms of
section 129(c)(1), the revocation would apply to all
entries which took place on or after the date of revo-
cation of the order, so Commerce would instruct the
U.S. Customs Service to stop requiring cash deposits as
of that date. In any subsequent administrative review,
Commerce would need to decide what to do with respect
to entries that took place prior to the date of
revocation. ||
In agreeing to implement the U.S.-Zeroing WTO Report,
the United States has agreed, inter alia, to abandon its zeroing
policy in all future antidumping investigations and apply that
abandonment in the challenged antidumping investigations,
including the investigation on which the Dutch Steel Anti-
dumping Proceeding is premised. As described above, one of
the important decisions Commerce will have to make in
implementing U.S.-Zeroing in the Dutch Steel Antidumping
'' Second Written Submission of the United States, United States-Sec-
tion 129(c)(1) of the Uruguay Round Agreements Act, 4 19, WT/DS221
(Mar. 8, 2002) (emphasis added). App. 139a-140a.
1]
Proceeding is how that implementation will affect previously
entered but unliquidated entries covered by the Dutch Steel
Antidumping Order,'* including those entries covered by the
administrative review underlying this certiorari petition.
Furthermore, it is uncontested that Commerce made an
affirmative dumping determination in the Dutch Steel Anti-
dumping Investigation only as a result of its zeroing policy.
See discussion supra pp. 7-8 & n.5. Thus, in making its Sec-
tion 129 determination, Commerce will have to revoke the
Dutch Steel Antidumping Order and terminate the anti-
dumping proceeding. Consistent with the United States’
representations to the WTO in the Section 129 dispute quoted
above, this revocation will require Commerce to determine
“what to do with respect to entries that took place prior to the
date of revocation” of the Dutch Steel Antidumping Order.
See quotation supra p. 10. Included within this decision will
be what to do with entries covered by the administrative
review upon which this certiorari petition is based.
REASONS FOR GRANTING THE PETITION
The Federal Circuit’s refusal to remand the first admin-
istrative review of the Dutch Steel Antidumping Proceeding
violates clear precedent of this Court, which requires a
reviewing court to remand following an intervening change in
policy in order that the agency may determine, in the first
instance, whether the change in policy will apply to the
administrative decision undergoing judicial review. NLRB v.
Food Store Employees Union, Local 347, 417 U.S. 1, 10 &
n.10 (1974). This precedent has been followed by the U.S.
Court of Appeals for the D.C. Circuit on numerous occasions.
'2 Certain Hot-Rolled Carbon Steel Flat Products from the Nether-
lands, 66 Fed. Reg. 59,565 (Dep’t of Commerce Nov. 29, 2001) (anti-
dumping order) (“Dutch Steel Antidumping Order’).
12
In addition, as a result of the Federal Circuit’s refusal to
remand, Commerce’s ability to implement the change in
zeroing policy has been limited because the Federal Circuit
effectively precluded the change in policy from affecting the
first administrative review of the Dutch Steel Antidump-
ing Order.
The violation of this Court’s precedent and resulting
limitation on the implementation of the change in zeroing
policy is serious and it is important for this Court to grant this
petition for several reasons. First, the Federal Circuit’s
failure to remand violates the congressionally-mandated im-
plementation process for adverse WTO reports which
recognizes the Executive Branch in consultation with Con-
gress as being responsible for implementation of adverse
WTO reports. Second, the Federal Circuit’s failure to remand
violates constitutional separation of powers considerations
that recognize the sole competency of the Executive Branch
to conduct the foreign affairs of the United States. Finally,
the issue raised here is likely to occur in various agency
proceedings, in future WTO disputes, and in at least one
pending case.
Furthermore, the Federal Circuit’s exclusive appellate
jurisdiction over international trade disputes, 28 U.S.C.
§ 1295(a)(5), ensures that the issues raised in this case will
not be further vetted in the other federal judicial circuits.
Accordingly, this Court is the only forum available to correct
the fundamental departure from this Court’s precedent
embodied in the Federal Circuit’s order.
13
I. THE FAILURE TO REMAND BELOW VIO-
LATES IN PRINCIPLE A DECISION OF THIS
COURT AND CONFLICTS IN PRINCIPLE
WITH THE DECISIONS OF THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT
A. This Court Has Established the Principle that a
Court Reviewing an Agency Determination
Following an Intervening Change of Policy
Must Remand to the Agency
In Food Store Employees Union, this Court reversed a
court of appeals decision that amended an NLRB order to
include an award of litigation expenses. 417 U.S. at 11. Prior
to Food Store Employees Union, the NLRB had a policy of
excluding these expenses from its orders. However, during
the pendency of the litigation, the NLRB issued an opinion
changing the policy to favor inclusion. Because of this
intervening change in policy, the court of appeals ordered
these expenses included in the order. This Court reversed the
court of appeals, finding that:
a court reviewing an agency decision following an
intervening change of policy by the agency should
remand to permit the agency to decide in the first
instance whether giving the change retrospective effect
will best effectuate the policies underlying the agency’s
governing act.
417 U.S. at 10 n.10; accord 2 Federal Procedure—Lawyers
Edition § 2:394 (2003) (“[c]hange in agency rule”’).
14
B. Consistent with this Court’s Precedent, the
Court of Appeals for the District of Columbia
Circuit Has Repeatedly Held that a Court
Reviewing an Agency Determination Following
an Intervening Change of Policy Must Remand
to the Agency
The U.S. Court of Appeals for the District of Columbia
Circuit has repeatedly followed the principle enunciated in
Food Store Employees Union. For example, in Williston
Basin Interstate Pipeline Company v. FERC (“Williston
Basin”), the D.C. Circuit remanded a determination to the
Federal Energy Regulatory Commission (“FERC”) because
the agency announced a change in policy. 165 F.3d 54, 62-63
(D.C. Cir. 1999). During the pendency of the Williston Basin
litigation, the FERC issued a determination in which it
changed its policy for evaluating the rate of return on com-
mon equity to weigh short-term data more heavily. Jd. at 61-
62. The D.C. Circuit held that the case had to be remanded to
the FERC in order for the agency to determine whether the
appellant’s rate of return on common equity should be
recalculated consistent with the new policy. /d. at 62-63.
Similarly, in Panhandle Eastern Pipe Line Co. v. FERC,
the D.C. Circuit remanded a FERC determination due to an
intervening change in policy. 890 F.2d 435, 439 (D.C. Cir.
1989). In that determination, the FERC denied certain pro-
posed tariff sheets that required customer orders for the
transportation of natural gas to be carried out through a
second pipeline company. In order to transfer those orders to
the second pipeline company, the tariff sheet filer proposed
assigning to its customers its entitlement to transportation
services provided by the second pipeline company. The
FERC rejected the proposed tariff sheets, ruling, inter alia,
that assigning entitlements to transportation services (i.e.,
“capacity brokering”) was not allowed under established
FERC policy. /d. at 438. The D.C. Circuit remanded the
15
FERC determination because, following the issuance of the
determination, the FERC announced a change in policy that
allowed for capacity brokering in individual cases and, at
times, even encouraged such brokering. In explaining the
basis for the remand, the D.C. Circuit cited this Court’s
decision in Food Store Employees Union and explained that a
remand was appropriate following an intervening change in
policy because:
[s]uch a disposition represents the intersection of two
well-established doctrines. The first holds that an ap-
pellate court must consider the law in effect at the time it
renders its decision, even when a change in governing
law is made by an administrative agency. See Thorpe v.
Housing Auth., 393 U.S. 268, 281 .. . (1969). The
second holds that a reviewing court may ‘not supply a
reasoned basis for the agency’s action that the agency
itself has not given.’ Motor Vehicles Mfrs. Ass’n v. State
Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43... (1983).
Thus, because we arc at liberty neither to evaluate the
[FERC]’s decision under [its] o/d policy on capacity
brokering nor to assess on cur own how Panhandle’s
tariffs would fare under FERC’s new policy, we are
required to remand so that the [FERC] may indicate
how, if at all, its decision would be affected by its
intervening policy change.'”
The [FERC] will need to determine, for example,
‘whether giving the change retrospective effect will
best effectuate the policies underlying’ the pertinent
reguiations, Food Store Employees Union, 417 U.S. at
10 n.10.. . and if so, how [its] new policy applies to
Panhandle’s tariffs.
Id. at 438-39 & n.10 (footnote omitted).
16
C. The Failure To Remand Below Is in Direct
Conflict with the Remand Principle Established
by this Court and Followed by the District of
Columbia Circuit
Both Commerce and USTR have stated in unequivocal
terms that Commerce will no longer employ in antidumping
investigations an average-to-average price comparison with
zeroing. See discussion supra pp. 9-10. This change in
policy occurred during the pendency of the Federal Circuit
litigation (i.e., after briefing, before the Federal Circuit issued
its judgment without opinion affirming the Court of Inter-
national Trade decision and before Corus’ motion for recon-
sideration). Jt is undisputed that Commerce employed this
abandoned zeroing methodology in the Dutch Steel Anti-
dumping Proceeding, the first administrative review of which
the Federal Circuit was examining below. It also is undis-
puted that a non-zeroed computation in the investigation of
Corus’ sales would have resulted in a determination that
Corus was not dumping, thus precluding Commerce from
issuing the antidumping order upon which the appealed
administrative review relics for authority. Finally, the United
States has given a commitment to the WTO Dispute Set-
tlement Body that it will implement the zeroing WTO Report
in the Dutch Steel Antidumping Proceeding. This WTO
Report requires the United States to refrain from zeroing
when re-determining dumping in the Dutch Steel Anti-
dumping Proceeding. Thus, as Corus argued in its petition
for rehearing (App. 54a), it was incumbent upon the Federal
Circuit to remand this case to Commerce under the principle
enunciated in Food Store Employees Union.
The Federal Circuit’s refusal to remand is in direct conflict
with the Food Store Employees Union remand rule. This
Court explained that a remand following an intervening
change in policy is necessary to allow the agency to dceter-
mine in the first instance the extent to which the change in
17
policy should be given retrospective effect. Food Store
Employees Union, 417 U.S. at 10 & n.10; see also Panhandle
Eastern Pipe Line Co., 890 F.2d at 439 & n.10; Williston
Basin, 165 F.3d at 63. The “retrospective effect” to which
this Court referred was whether the NLRB’s change in policy
Should apply to an agency determination completed before
the change in policy and undergoing judicial review. In the
instant case, the Government must answer a similar question.
The Government must determine how its change in zeroing
policy should affect the legal basis for an administrative
review determination that is undergoing judicial review.
As a result of the U.S.-Zeroing WTO dispute, the United
States has agreed to implement a new comparison method-
ology for all future antidumping investigations as well as in
the fifteen challenged antidumping investigations, including
the investigation of Corus’ imports. It is uncontested that, but
for the abandoned zeroing methodology, Commerce would
have made a negative dumping determination in the Dutch
Steel Antidumping Investigation. See discussion supra pp. 7-
8 & n.5. Thus, in the Dutch Steel Antidumping Proceeding,
Commerce was able to make an affirmative dumping deter-
mination and impose an antidumping order—the same order
under which Commerce conducted the appealed admin-
istrative review—only by using the methodology that is the
subject of the policy change.
This case therefore presents even more conclusive facts
than did Food Store Employees Union or the D.C. Circuit
cascs cited above for the principle that a court, faced with an
intervening change in policy by the agency, must remand to
permit the agency to decide in the first instance issues related
to the application of the changed policy to cases undergoing
judicial review. Here, the agency has announced the aban-
donment of the zeroing methodology without which it would
have been unable to issue the antidumping order that
provided the legal authority for the appealed review. App.
18
109a. The abandonment of the methodology was unequiv-
ocally reconfirmed nine months later. App. 114a. Moreover,
the United States has resolved the issue of whether that
methodological change will apply to the investigation that
justificd the antidumping order in this case. It did so by
committing to the WTO to implement in the instant anti-
dumping proceeding the abandonment of the zeroing method-
ology condemned in U.S.-Zeroing."*
There remain, of course, issues that the agency must
address. With the computation method that supported issu-
ance of the order now abandoned, is there any other basis on
which the validity of the order can be maintained? If the
order was invalidly issued, does this remove the basis on
which the reviews of that order—such as the review on
appeal—can be properly conducted? Jilin Henghe Pharm.
Co. v. United States, 342 F. Supp. 2d 1301, 1309-10 (Ct. Int’!
Trade 2004) (once Commerce’s dumping determination is
invalidated, it cannot serve as a legal basis for imposition of
antidumping duties), vacated as moot, 123 Fed. Appx. 402
(Fed. Cir. 2005). As to the latter question, the Court should
note that the United States has given specific assurance to the
WTO that, where an order is revoked in implementation of a
WTO report, “Commerce would need to decide what to do
with respect to entries that took place prior to the date of
revocation.”'* The remand that is required by the rule of
Food Store Employees Union is therefore to permit the
agency to consider fully the implementation issues which
'’ Commerce recently has confirmed that the change in policy will be
applied to this proceeding. Antidumping Proceedings: Calculation of the
Weighted-Average Dumping Margin During an Antidumping I/nvesti-
gation, 71 Fed. Reg. 77,722, 77,725 (Dep’t of Commerce Dec. 27, 2006)
(final modification). App. 114a.
'* Second Written Submission of the United States, United States-Sec-
tion 129(c)(1) of the Uruguay Round Agreements Act, 4 19, WT/DS221
(Mar. 8, 2002). App. 140a.
19
arise from the implementation course it has already set—
namely, to apply its change in policy to the antidumping
proceeding of which the appealed decision was the first
administrative review. The issues that remain unresolved—
issues relating to the effect of that retrospective application of
the changed policy to the validity of the antidumping
proceeding, including the validity of the appealed review—
are quintessentially the type of issues that both this Court and
the D.C. Circuit have held must be decided by the agency and
that require a remand.
Thus, for all these reasons, the only proper course is for
‘this case to be remanded so that the Executive Branch may
determine in the first instance the extent to which the zeroing
change in policy should affect cases under on-going judicial
review, including the case underlying the instant certio-
rari petition.
Il. THE FAILURE TO REMAND IS OF GREAT
IMPORTANCE BECAUSE IT DIRECTLY
IMPLICATES THE UNITED STATES’ INTER-
NATIONAL OBLIGATIONS UNDER THE WTO
AGREEMENTS
As discussed above, the United States has obligated itself
to implement the U.S.-Zeroing WTQ decision in the Dutch
Steel Antidumping Proceeding which underlies the instant
certiorari petition. See discussion supra pp. 10-11. Where a
court is reviewing an administrative proceeding in which the
United States has obligated itself internationally, it is
particularly important for the reviewing court to remand to
the agency. First, such a remand is consistent with the
congressionally-mandated implementation regime for adverse
WTO reports. This statutory regime places the responsibility
for implementation squarely in the Executive Branch (i.e.,
USTR and Commerce). 19 U.S.C. §§ 3533(g) & 3538.
Apps. 47a & 49a. Second, such a remand comports with the
20
constitutional separation of powers which recognizes the sole
competency of the Executive Branch in conducting the
foreign affairs of the United States. United States v. Curtiss-
Wright Export Corp., 299 U.S. 304, 319 (1936). A remand
would allow the Executive Branch to evaluate fully the
implementation as it relates to the United States’ international
obligations, thus minimizing the likelihood that the United
States will act contrary to these obligations. In this way, such
a remand also is consistent with the responsibility of the
Federal Judiciary in minimizing conflicts between the law of
the United States and the United States’ international obli-
gations. Cf Murray v. Schooner Charming Betsy, 6 U.S. (2
Cranch) 64, 118 (1804) (“an act of Congress ought never to
be construed to violate the law of nations, if any other
possible construction remains”).
Finally, such a remand also comports with general prin--
ciples of administrative law which recognize the importance
of allowing agencies primary jurisdiction to determine how to
conduct agency proceedings. As this Court has recognized,
allowing agencies the discretion to consider, in the first
instance, how to conduct an agency proceeding is necessary
given that “practical considerations dictate a division of
functions between court and agency... .” Federal Maritime
Bd. v. Isbrandtsen Co., 356 U.S. 481, 498 (1958). Allowing
agencies primary jurisdiction facilitates the conduct of the
agencies’ congressionally-mandated responsibility in main-
taining uniform regulatory schemes and also permits the
government to take full advantage of the specialized knowl-
edge of these agencies with respect to matters within their
fields. Alfred C. Aman, Jr. & William T. Mayton, Admin-
istrative Law § 12.11 (2d ed. 2001).
The Federal Circuit has expressly recognized the impor-
tance of allowing the Executive Branch to take the primary
: 21
role in implementing adverse WTO reports without interfer-
ence from the Judiciary. The Federal Circuit has stated:
Congress . . . has authorized the United States Trade
Representative, an arm of the Executive branch, in con-
sultation with various congressional and executive
bodies and agencies, to determine whether or not to
implement the [WTO] reports and determinations and, if
so implemented, the extent of implementation.
* eK *
* * * We will not attempt to perform duties that fall with-
in the exclusive province of the political branches .. . .
Corus Staal BV v. Dep’t of Commerce, 395 F.3d 1343, 1349
(Fed. Cir. 2005), cert. denied, 126 S. Ct. 1023 (2006). In
failing to remand in the case below, the Federal Circuit vio-
lated these principles, effectively deciding that implemen-
tation of U.S.-Zeroing would not reach the goods covered by
the first administrative review of the Dutch Steel Anti-
dumping Order. Specifically, a remand is necessary in order
for the Government to include the first administrative review
of the Dutch Steel Antidumping Order in the implementation
of U.S.-Zeroing. For the reasons discussed above, such a
limitation on the Executive Branch’s implementation of the
United States’ international obligations is impermissible
under the Uruguay Round Agreements Act, constitutional
separation of powers principles, and general administrative
law principles, and must be corrected by this Court.
Given the direct impact on the United States’ international
obligations under the WTO Agreements, the importance of
remanding in the instant proceeding is manifest. However,
there are implementation issues specific to this case which
make granting the petition for certiorari even more crucial.
Specifically, it is uncontested that implementation of U.S.-
Zeroing will result in a negative dumping determination, thus
invalidating the Dutch Steel Antidumping Order and re-
quiring termination of the Dutch Steel Antidumping Pro-
22
ceeding. See discussion supra pp. 7-8 & n.5. The issues
inherent to revoking an antidumping order in response to an
adverse WTO report, particularly whether such a revocation
‘will reach previously entered but unliquidated entries, have
never been resolved by the Executive Branch.
Moreover, there can be no question that these revocation
issues are highly controversial under the WTO Agreements.
In 2001, Canada challenged the United States’ legal regime
for implementation of adverse WTO reports, arguing that it
was WTO-inconsistent because, inter alia, it would not allow
the Executive Branch to reach previously entered but unliq-
uidated entries when revoking an antidumping order. The
United States argued before the WTO panel that the im-
plementation regime did not preclude a revocation from
affecting previously entered but unliquidated entrics and that,
instead, the Executive Branch would have to determine in
individual cases how the revocation would affect such entries.
See discussion supra p. 10.
Based largely on this argument, the WTO panel ruled that
the U.S. implementation regime was WTO-consistent.'°
Thus, there can be no question that the implementation issues
inherent in U.S.-Zeroing directly implicate controversial
issues under the WTO Agreements and necessitate a remand.
Furthermore, when the Federal Circuit’s limitation on the
United States’ implementation is considered in light of the
WTO report in the challenge to Section 129, it is evident that
the Federal Circuit could be, in effect, causing the United
States to violate its international obligations. That is, if the
United States is unable to reach previously entered but unliq-
uidated entries in implementing U.S.-Zeroing, the United
States may be in violation of its international obligations
under the WTO Agreements. A remand would enable Com-
'> Panel Report, United States-Section 129(c)(1) of the Uruguay Round
Agreements Act, 9 6.82 & 6.83, WT/DS221/R (July 15, 2002).
23
merce to prevent this result because it would ensure that the
Executive Branch has available the full range of options when
deciding how to implement U.S.-Zeroing.
lil. THE FAILURE TO REMAND IS OF GREAT
IMPORTANCE BECAUSE THE FOOD STORE
EMPLOYEES UNION ISSUE IS LIKELY TO
RECUR IN VARIOUS AGENCY PROCEED-
INGS, IN FUTURE WTO DISPUTES, AND IN A
PENDING CASE
As explained above, the Food Store Employees Union rule
requires a remand when an agency announces an intervening
change in policy and that policy was applied in an ad-
ministrative determination undergoing judicial review. See
discussion supra p. 13. The remand is required in order to
determine the extent to which the change in policy should
affect the administrative determination undergoing judicial
review. Because of the structure of the administrative pro-
ceeding underlying this certiorari petition, the need to remand
herein is particularly acute. The need for a remand will also
present itself in future WTO antidumping and counter-
vailing duty disputes. Finally, this issue is likely to arise in
various administrative proceedings that the Federal Circuit
reviews and in at least one additional case undergoing Federal
Circuit review. Because this issue is likely to arise in an on-
going case and future cases before the Federal Circuit, it is
‘particularly important for this Court to grant the instant
certiorari petition.
Antidumping proceedings are made of up of a three-step
sequential process: agency investigation, issuance of an
agency order, and agency action pursuant to the order. See
discussion supra p. 5. Each of these steps is dependent on the
completion of the prior step. Once an agency announces a
change of policy that is to be applied to a prior step, the
agency must decide whether this change in policy will affect
24
the subsequent steps in the administrative proceeding. Thus,
as Commerce has announced a change in policy in the first
step in the instant agency proceeding (i.e., the Dutch Steel
Antidumping Investigation), Commerce must decide whether
this change will affect subsequent steps in the proceeding,
including the Dutch Steel Antidumping Order and the
administrative reviews under that order.
The need for such a remand is additionally required in the
instant case because it is uncontested that the announced
change in policy will result in a negative dumping
determination, thus invalidating the second step of the agency
proceeding (i.e., invalidating the Dutch Steel Antidumping
Order) and requiring termination of the Dutch Steel Anti-
dumping Proceeding. See discussion supra pp. 7-8 & n.5.
An agency remand is needed, therefore, in order to determine
whether any future agency action (e.g., assessment of anti-
dumping duties) may be taken pursuant to the invalidated
Dutch Steel Antidumping Order.
This three-step process is found in all antidumping and
countervailing duty proceedings. Thus, the need for a remand
is likely to occur in future WTO disputes involving anti-
dumping and countervailing duty proceedings.'° Whenever,
as in che instant appeal, an antidumping or countervailing
duty WTO dispute results in a change in policy that is to be
'® Countervailing duty proceedings are conducted to determine whether
foreign producers exporting goods to the United States have benefited
from improper subsidization by a foreign government. Countervailing
duty proceedings have the same structure as antidumping proceedings
(e.g., investigation, order and administrative reviews). Thus, WTO dis-
putes involving countervailing duty proceedings may present imple-
mentation issues very similar to those present in the Dutch Steel
Antidumping Proceeding (i.e., whether revocation of a countervailing
duty order would affect administrative reviews undergoing judicial re-
view) and similarly would require a remand pursuant to Food Store
Employees Union.
25
applied to one of the prior steps in the agency proceeding
(e.g., an antidumping investigation), the Food Store Em-
ployees Union rule requires a remand to determine whether
this change in policy will affect subsequent parts of the
administrative proceeding. Moreover, the likelihood of such
a recurrence is great in light of the fact that a clear majority
of WTO disputes involve antidumping and countervail-
ing proceedings.
Furthermore, it is not just in Federal Circuit appeals in-
volving Commerce determinations in which the Food Store
Employees Union rule can be implicated. For example, the
Federal Circuit reviews Commission injury determinations in
antidumping proceedings.'’ If the Commission were to
announce a change in policy as to injury investigations, the
Food Store Employees Union rule would require a remand if
a court were reviewing agency action taken pursuant to the
prior policy. Similarly, the Federal Circuit reviews Customs’
determinations, such as customs rulings which determine
under what tariff classification and at what rate a good should
enter the United States.'* If, for example, Customs were to
change its policy for determining tariff classification, the
Food Store Employees Union rule would require a remand if
a court were reviewing agency action taken pursuant to the
prior policy. The Federal Circuit also hears numerous other
appeals involving agency action and agency policies and its
"USC. § 1295(a)(5) (the Federal Circuit has exclusive jurisdiction
of an appeal from a final decision of the Court of International Trade); see
also 28 U.S.C. § 1581(c) (stating that the Court of International Trade has
exclusive jurisdiction over civil actions commenced under section 516A
of the Tanff Act of 1930 (i.e., antidumping and countervailing duty
determinations, including Commission injury determinations).
'* 98: U.S.C. § 1295(a)(5) (the Federal Circuit has exclusive jurisdiction
of an appeal from a final decision of the Court of International Tradc); see
also 28 U.S.C. § 1581(h) (stating that the Court of International Trade has
exclusive jurisdiction over Customs’ rulings, including classification and
valuation rulings).
26
jurisdiction is not limited to matters involving international
trade.'? Because Federal Circuit precedent contradicts the
precedent of the D.C. Circuit—the other court of appeals with
substantial responsibility for reviewing agency action—it
creates an unwarranted conflict in the law governing federal
agencies.
Finally, the need for a remand is certain to occur in an on-
going appeal to the Federal Circuit of the second admin-
istrative review of the Dutch Steel Antidumping Order.”
Corus Staal BV y. United States, Appeal No. 2006-1652,
appealed from the U.S. Court of International Trade, Case
No. 05-CV-00354. For the reasons discussed above regard-
ing the first administrative review, Commerce’s announced
change in policy in the Dutch Steel Antidumping Proceeding
requires a remand in the second administrative review as
well. Just as Commerce will have to determine whether the
abandonment of zeroing should affect the first administrative
review, Commerce also will have to determine whether it
should affect the second administrative review. This is
particularly the case because it is uncontested that the change
in policy will lead to a negative dumping determination, thus
invalidating the Dutch Steel Antidumping Order and re-
'9 See generally 28 U.S.C. § 1295(a) (describing the jurisdiction of the
Federal Circuit to include, inter alia, determinations of the U.S. Patent
and Trademark Office, the Secretary of Commerce, the Merit Systems
Protection Board, and an agency board of contract appeals).
0 As discussed supra p. 5, pursuant to a request from “interested
parties” (e.g., the U.S. domestic industry or foreign producers), Com-
merce conducts annual administrative reviews of antidumping orders in
order to establish the amount of duties to be assessed on entries covered
by the administrative review and to establish the cash deposit rates for
future entries. In the Dutch Steel Antidumping Proceeding, Commerce
has concluded the first and second administrative reviews and is currently
conducting the fourth and fifth administrative reviews. The third
administrative review was not conducted because of a lack of interest
from interested parties.
27
quiring termination of the Dutch Steel Antidumping Pro-
ceeding. A remand is required, therefore, in order for Com-
merce to determine whether any agency action may be taken
pursuant to the invalidated order in cither the first admin-
istrative review or the second administrative review.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
RICHARD OLAF CUNNINGHAM *
JOEL DENNIS KAUFMAN
ALICE ALEXANDRA KIPEL
WILLIAM GEORGE ISASI
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 429-3000
* Counsel of Record Counsel for Petitioner
Corus Staal BV
January 25, 2007
APPENDIX
APPENDICES
APPENDIX A Page
Orders of the Federal Circuit
Order Denying Petition for Rehearing and
NE BEUe BION dccissttkessncnnnincscsdidicinalnceniciestas la
Order Without Opinion Affirming Court of
SI Tr as aeclins talea het 2a
APPENDIX B
Opinion of the Court of International Trade.............. 3a
APPENDIX C
Department of Commerce Amended Final
RNID ciccchsiacinnivctd sestasleantbepsiipcniaiianiiasibeaindeteishmiin 28a
APPENDIX D
Department of Commerce Final Determination ........ 35a
APPENDIX E
RI PIII ccosiniccinccheatpakennseianaeemmunionnidnioncs 45a
a ics He Te caidanecicescdabinbibisbetidnienaeddeationineedinote 45a
ee Ras OF PE Cenceeietinintinsthosvineiplocaiclalnieaiiin 49a
APPENDIX F
Corus’ Petition for Rehearing En Banc Before the
Ee SID vxscsitcaninicnitiesielinasbntuosoanbiciadsndiniinies 54a
APPENDIX G
European Communities’ Request for a WTO Panel
Be I IIE sichicciasinsviceciiuisenintaciaineneiniempaitaniitediaies 75a
APPENDIX H
U.S. Statements before WTO Dispute Settlement
Body Agreeing To Implement U.S.-Zeroing......... 105Sa
APPENDICES—Continued
APPENDIX I Page
Department of Commerce Federal Register Notice
Announcing Change in Zeroing Methodology...... 109a
APPENDIX J
Department of Commerce Federal Register Notice :
Confirming Change in Zeroing Methodology ....... 114a
APPENDIX K
Second Written Submission of the United States in
Section 129 WTO Challenge........c:csccrorsosssosesseoee 129a
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
[Filed SEP 12, 2006]
ORDER
A petition for rehearing en banc having been filed by the
Appellant, and the matter having first been referred as a
petition for rehearing to the panel that heard the appeal, and
thereafter the petition for rehearing en banc having been
referred to the circuit judges who are in regular active service, —
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for rehearing be, and the same
hereby is, DENIED and it is further
ORDERED that the petition for rehearing en banc be, and
the same hereby is, DENIED. The mandate of the court will
issue on September 19, 2006.
FOR THE COURT,
/s/ Jan Horbaly
JAN HORBALY
Clerk
cc: Joel D. Kaufman
Claudia Burke, John J. Mangan
2a
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
[Filed JUN 13, 2006]
05-1600
CORUS STAAL BV,
Plaintiff-Appellant,
V.
UNITED STATES,
Defendant-Appellee,
and
UNITED STATES STEEL CORPORATION,
Defendant-Appellee.
JUDGMENT
ON APPEAL from the United States Court of International
Trade. _
IN CASE NOS. 04-003 16
This CAUSE having been heard and considered it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
Per Curiam (RADER, Circuit Judge, PLAGER, Senior
Circuit Judge, and LINN, Circuit Judge.)
ENTERED BY ORDER OF THE COURT
/s/ Jan Horbaly
JAN HORBALY, Clerk
3a
APPENDIX B
UNITED STATES COURT OF INTERNATIONAL TRADE
Court No. 04-003 16
Before: Jane A. Restani, Chief Judge
CORUS STAAL BV,
Plaintiff,
Vv.
UNITED STATES,
Defendant,
and
UNITED STATES STEEL CORPORATION,
Defendant-Intervenor.
OPINION
Restani, Chief Judge: This matter is before the court on the
plaintiff Corus Staal BV’s (“Corus”) motion for judgment
on the agency record pursuant to United States Court of
International Court No. 04-00316 Page 2 Trade Rule 56.2. At
issue are the final results of the first administrative review of
an antidumping duty order by the International Trade Ad-
ministration of the United States Department of Commerce
(“Commerce” or “Department”) of hot-rolled steel from the
Netherlands. See Certain Hot-Rolled Carbon Steel Flat Prod-
ucts from the Netherlands, 69 Fed. Reg. 33,630 (Dep’t Com-
merce June 16, 2004) (final admin. rev.), as amended by, 69
Fed. Reg. 43,801 (Dep’t Commerce July 22, 2004) (am. final
admin. rev.) [hereinafter Final Results}.
Corus claims (1) that the agency’s use of a “zeroing” meth-
odology is contrary to law, and (2) that its use of the date of
entry (instead of the date of sale) for selection of certain
export price (“EP”) transactions is both contrary to law and
4a
unsupported by substantial evidence. Corus claims that zero-
ing, whereby “negative dumping margins,” viz, where the U.
S. price is higher than the normal value (“NV”), are set to
zero in calculating Corus’s weighted average dumping mar-
gin (and concomitant assessment rate) do not properly allow
non-dumped sales to offset dumped sales, introducing an
“improper statistical bias into the calculation.” Pl.’s Br. at 2.
Corus further claims that this court and the Court of Appeals
for the Federal Circuit have held that zeroing is not required
by statute, and, therefore, this court may only uphold Com-
merce’s methodology if it is reasonable, which Corus asserts
it no longer is, given the WTO Antidumping Agreement, sec
Pub. L. No. 103- 465, 108 Stat. 4809 (1994), and recent WTO
decisions. '
In addition, Corus argues that Commerce erred legally arid
factually by using the date of entry to select certain EP
transactions for review, which it asserts is inconsistent with
its use of the date of sale for other EP transactions and all
constructed export price (“CEP”) sales. Because, allegedly,
Commerce offered no reasonable explanation for basing its
revicw in some instances on the date of sale and in others on
the date of entry, and offered no explanation for deviating
from its prior and exclusive use of the date of sale as a
' See, e.g., United States — Final Dumping Determination on Softwood
Lumber from Canada, WT/DS264/AB/R, 2004 WTO DS LEXIS 18 (Aug.
11, 2004, adopted Aug. 31, 2004) (appellate body report) (“Softwood
Lumber’), United States—Sunset Review of Anti-Dumping Duties on
Corrosion-resistant Carbon Steel Flat Products from Japan, WT/DS244/
AB/R, 2003 WTO DS LEXIS 218 (Dec. 15, 2003, adopted Jan. 9, 2004)
(appellate body report) (“Corrosion-resistant Steel’), European Commu-
nities—Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from
India, WT/DS141/AB/R, 2001 WTO DS LEXIS 13 (Mar. 1, 2001,
adopted Mar. 12, 2001) (appellate body report) (“EC-Bed Linen”).
Sa
selection criterion in its preliminary results,” Corus asks the
court to enter an order remanding this administrative review
to Commerce. -Corus also asks this court to instruct Com-
merce, on remand, (1) to re-calculate Corus’s dumping mar-
gin, cash deposit rate, and assessment rate without resort to
zeroing; (2) to use, exclusively, the date of sale to select the
transactions to be reviewed during the period of review
(“POR”) (instead of date of sale for CEP transactions and a
combination of date of sale and date of entry for EP trans-
actions); and (3) to refund the amount of estimated antidump-
ing duty deposits collected in excess of the lawful amount.
In response to plaintiffs motion, both the defendant
(“Government” or “Commerce”), and the United States Steel
Corporation (“U. S. Steel”), the defendant-intervenor, argue
that Corus’s motion, with respect to zeroing, should be denied
because the final results are in accordance with law. Com-
merce, citing decisions by this court and the Federal Circuit,
which have both repeatedly sustained Commerce’s methodol-
ogy, asserts: (1) zeroing is a “reasonable” interpretation of an
ambiguous statutory provision regarding dumping margins
and weighted average dumping margins, see 19 U.S.C.
§ 1677(35) (2000); and (2) the WTO reports cited by Corus
are legally irrelevant, for numerous reasons. U. S. Steel
agrees with Commerce that the Department’s use of zeroing
was proper, and that Corus’s reliance on WTO decisions is
misplaced, but also asserts that zeroing is not merely in
accordance with law but that its use is actually required by
law.
As for the second issuc, regarding Commerce’s classifica-
tion of certain U. S. sales as EP sales, Commerce and U:S.
Steel disagree. Commerce asks the court to remand the issuc
* See Certain Hot-Rolled Carbon Steel Flat Products from the Nether-
lands, 68 Fed. Reg. 68,341 (Dep’t Commerce Dec. 8, 2003) (prelim.
admin. rev.) [hereinafter Prelim. Results].
6a
to Commerce to re-classify certain EP transactions; U.S. Steel
requests that the plaintiff's motion, in all respects, be denied.
U.S. Steel asserts that Corus mischaracterized certain sales
(those made to its just-in-time (“JIT”) customers) as EP sales,
and argues that any sales made after importation must, ac-
cording to the statutory terms, see 19 U.S.C. § 1677a(a){b)
(2000), be CEP sales. U.S. Steel further argues that the De-
partment properly utilized its standard methodology of using
the date of sale during the POR for CEP sales (and for EP-
classified sales made after importation, such as CEP sales
normally are), and of using the date of entry for ordinary EP
sales. As explained below, the court concludes that remand is
not appropriate and the final results of the administrative
review are sustained.
PROCEDURAL HISTORY
This appeal arises out of the first administrative review of
an antidumping duty order regarding hot-rolled steel from the
Netherlands. U. S. Steel, a domestic producer of hot-rolled
steel, and a defendant-intervenor in these proceedings, was
both a petitioner in the investigation that resulted in Com-
merce’s antidumping duty order and an active participant in
the administrative proceedings below. Corus, the plaintiff, is
a producer of hot-rolled steel in the Netherlands and brought
this appeal to challenge two aspects of the final results that
pertain to the calculation methodology Commerce used to
determine the 4.80% weighted average dumping margin ap-
plicable to Corus: (1) zeroing; and (2) the change in selection
criterion from date of sale, to date of sale for all CEP trans-
actions and certain EP transactions and date of entry for the
remaining post-importation EP sales. See Final Results, 69
Fed. Reg. at 33,631 and accompanying /ssues & Decision
Mem. {hereinafter “/ssues Mem. to Steel from the Nether-
lands’”|, at cmts. 4, 10, as amended by, 69 Fed. Reg. at
43,802.
Ta
On November 29, 2001, Commerce published the anti-
) dumping duty order on certain hot-rolled carbon steel flat
products from the Netherlands. See Certain Hot-Rolled
Carbon Steel Flat Products from the Netherlands, 66 Fed.
Reg. 59,565 (Dep’t Commerce Nov. 29, 2001) (antidumping
duty order). On November 1, 2002, Commerce published
notice of the opportunity to request an administrative review
of certain hot-rolled carbon steel flat products from the
Netherlands, covering the period from May 3, 2001, to
October 31, 2002. See Antidumping or Countervailing Duty
Order, Finding, or Suspended Investigation, 67 Fed. Reg.
66,612 (Dep’t Commerce Nov. 1, 2002) (opportunity to req.
admin. rev.).
On November 26 and 27, 2002,° a group of U. S. steel
companies, including U.S. Stecl, pursuant to 19 C.F.R.
351.213(b)(1) (2004),* requested that Commerce, in accord-
dance with 19 U.S.C. § 1675 (2000),° conduct an adminis-
trative review of Corus’s sales of the subject merchandise. On
December 26, 2002, Commerce published a notice of initia-
tion of this antidumping duty administrative review, covering
the period from May 3, 2001, through October 31, 2002. See
Initiation of Antidumping and Countervailing Duty Admin-
istrative Reviews, 67 Fed. Reg. 78,772 (Dep’t Commerce
Dec. 26, 2002). On January 9, 2003, Commerce issued its
*Nucor Corporation filed its request for administrative review on
November 26, 2002; Bethlehem Steel Corporation, National Stee] Corpo-
ration, and U.S. Steel filed their request on November 27, 2002. Prelim.
Results, 68 Fed. Reg. at 68,342 n.1.
* Allowing domestic interested parties to request an administrative re-
view of an antidumping or countervailing duty order each year during the
anniversary month of the order’s publication.
* Providing for periodic review of duty order amount, at least once
during each 12-month period, beginning on the anniversary of the date of
publication of the antidumping duty order, if a request for such a review
has been reccived.
8a
antidumping duty questionnaire to Corus—an ongoing ques-
tion and response process that lasted from then until May 19,
2003, when Corus responded to Commerce’s third supple-
mental questionnaire. See Prelim. Results, 68 Fed. Reg. at
68,342. Commerce then verified Corus’s submitted data and
requested Corus to report entered value data. See id. Also, as
a result of the court’s decision in Corus Staal BV v. United
States, 283 F. Supp. 2d 1357, 1358 (Ct. Int’] Trade 2003), the
Department will not assess duties on subject merchandise that
entered between October, 30, 2001, and November 28, 2001,
inclusive. See also Certain Hot-Rolled Carbon Steel Flat
Products from the Netherlands, 68 Fed. Reg. 60,912, 60,912
(Dep’t Commerce Oct. 24, 2003) (final ct. decision &
suspension of liquidation).
On December 8, 2003, Commerce published its prelim-
inary results from the administrative revicw of the anti-
dumping duty order on hot-rolled steel from the Netherlands.
See Prelim. Results, 68 Fed. Reg. at 68,341. After issuance of
these preliminary results, the Department invited comments;
and in response, Corus, U. S. Steel, and Nucor filed case
briefs on January 14, 2004, and submitted rebuttal briefs on
January 23, 2004. See Final Results, 69 Fed. Reg. at 33,630.
After Corus timely-filed a ministerial error allegation, in
accordance with 19 C.F.R. 351.224(c)(2) (2004),° the Depart-
ment revised its antidumping duty margin for Corus, decreas-
ing it from the original 4.94% assessment to the currently
contested 4.80% ad valorem. See Certain Hot-Rolled Carbon
Steel Flat Products from the Netherlands, 69 Fed. Reg.
43,801, 43,801-02 (Dep’t Commerce July 22, 2004) (am.
final admin. rev.). Corus timely commenced this action
° Setting five days as the time limit for submitting comments regarding
ministerial errors.
9a
under 19 U.S.C. § 1516a(a)(2)(A)(i),” (B)(iii)® (2000), and 28
U.S.C. § 1581(c) (2000).
JURISDICTION & STANDARD OF REVIEW
The court has jurisdiction pursuant to 19 U.S.C.
§ 1516a(a)(2) and 28 U.S.C. § 1581(c). The court, in review-
ing one of Commerce’s administrative determinations, will
uphold the challenged determination unless it is “unsupported
by substantial evidence on the record, or otherwise not in
accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(1).
DISCUSSION
I. Commerce’s Request For Remand Is Denied
Prior to oral argument, the court denied Commerce’s re-
quest for a remand. The request was both unsupported and
unexplained. With respect to the classification of sales as EP
or CEP, Commerce simply stated that “[u]pon further review
. certain transactions were mistakenly classified as EP
transactions.” Resp. Br. at 26.
In SKF USA, Inc. v. United States, 254 F.3d 1022, 1028
(Fed. Cir. 2001), the Court of Appeals addressed the issue of
a voluntary remand when Commerce’s original determi-
nation, denying a favorable adjustment to the plaintiff-
appellant, was not required by statute. After initially deter-
mining, during the administrative review, that the loss
incurred on the sale of a subsidiary should be included in the
plaintiff's general and administrative (“G&A’’) expense calc-
ulation, Commerce, on appeal before the Court of Interna-
tional Trade, “reversed course,” and instead of defending its
final results, sought a remand, arguing, in accordance with the
’ Allowing review of administrative determinations on the record with-
in thirty days of the date of publication in the Federal Register.
* Defining reviewable determinations to include final determinations
by the “administering authority” (Commerce) or the “Commission” (Inter-
national Trade Commission) under 19 U.S.C. § 1675.
10a
plaintiffs position, that the loss should no longer be included
in the G&A expense calculation. /d. at 1026.
Obviously, this case differs from SKF because Com-
merce’s remand request is not so that it may bestow a benefit
on the party paying duties. Here, the request is in response to
defendant-intervenor U.S. Steel’s brief, which claims a
misclassification—“because these so-called EP sales did not
meet the statutory definition of EP,” (see Def.-Intervenor’s
Br. at 25—26)—although U.S. Stee] admits it missed the time
for filing suit to change the classification. Nonetheless, SKF
may be instructive because the court explained that an agency
may seek a remand (1) to reconsider its decision because of
intervening events outside of the agency’s control; (2) to
reconsider its previous position even if there are no inter-
vening events; or (3) because it belicves that its original
decision was incorrect on the merits and it wishes to change
the result. 254 F.3d at 1028-29.
The first situation docs not apply to this case.
With respect to the second situation, the Federal Circuit
explained that an agency may “simply state that it had doubts
about the correctness of its decision or that decision’s rela-
tionship to the agency’s other policies.” /d. at 1029. In that
situation, the reviewing court has discretion over whether to
remand, and may refuse a remand if the agency’s request is
“frivolous or in bad faith.” Jd. But, “if the agency’s concern
is substantial and legitimate, a remand is usually appropriate.”
Id. Here, there does not appear to be any substantial or
legitimate administrative concern warranting a remand. Com-
merce’s stated reason for requesting a remand was simply “to
correct this classification so that its written position is
consistent with the factual record.” Def.’s Resp. Br. at 26.
Commerce articulated no other policy issue or view, nor did it
otherwise express any doubts about the correctness of its
decision in relation to the agency’s other policies.
lla
With respect to the third situation, the court held that a
“{rjemand to an agency is generally appropriate to correct sim-
ple errors, such as clerical errors, transcription errors, or erron-
cous calculations.” SKF’, 254 F.3d at 1029. The court explained
that “[a]lthough a court need not necessarily grant such a
remand request, remand may conserve judicial resources, or
the agency’s views on the statutory question, though not dis-
positive, may be useful to the reviewing court.” Jd.
Here, a remand would not seem to preserve judicial re-
sources or permit application of Commerce’s views on a
statutory question. See Corus Staal BV y. United States, 259
F. Supp. 2d 1253, 1257 (Ct. Int’l Trade 2003) (“Corus Staal
I’) (“[C]oncerns for finality do exist and the agency must
state its reasons for requesting remand. Further, if only to
guard against the ‘bad faith’ requests of concern to the court
in SKF, the court must be apprised of the reason for the
remand request, whether it be on account of error or merely a
change in policy.”).
While there was a vague reason given here, which exceeds
the information provided in the earlier Corus Staal ] case, this
was still insufficiently informative. There is no real evidence
that Commerce erred. While the EP sales at issue appear were
invoiced after importation, a hallmark of CEP sales, the
Statute does permit, inter alia, “post-importation” EP sales
where the sale is pre-negotiated. See 19 U.S.C. § 1677a(a)
(“The term ‘export price’ means the price at which the subject
merchandise is first sold (or agreed to be sold) before the date
of importation . . . .”). Thus, if an error did occur, Commerce
needed to explain it in detail.
Furthermore, U.S. Steel avers that reclassifying the sales
from EP to CEP would have an insignificant effect on the
dumping margin, and it does not seck this relief. Accordingly,
if the court has discretion over whether to grant this remand
request, the court exercises such discretion to deny this
12a
request for remand, which likely would simply delay this
matter for no substantial reason.
The court is concerned that Commerce is taking some
broad language in the SKF decision, the holding of which
may apply to a very narrow group of cases, out of context,
simply to avoid dealing with difficult methodological issues.
In this case, Commerce did not even brief the issue of the
proper date for selection of EP and CEP sales, relying instead
on its unsupported request for remand to delay the day of
reckoning. This was a disservice to the court, as the court
must resolve this issue. The interests of both plaintiffs and
defendants depend on the prompt and orderly resolution of
these matters, which Congress clearly intended.” The Govern-
ment must give due regard to finality and cannot simply ask
for a do-over any time it wishes.
II. Commerce’s Use Of Zeroing Is Reasonable And In
Accordance With Law
As Corus noted in its brief, numerous cases before this
court and the Federal Circuit have held that “zeroing” is
neither required nor prohibited by the U.S. statute, see 19
® Reflecting the need for expedition in these matters, United States
Court of International Trade Rule 3(g) provides for the precedence of
unfair trade cases over most other actions, and the statute contains a series
of time limitations on Commerce’s actions. See USCIT Rule 3(g) (listing
an action contesting a determination in a countervailing or antidumping
duty proceeding third in order of precedence, following only an action
seeking injunctive relicf and an action involving the exclusion or rede-
livery of perishable merchandise); 19 U.S.C. § 1675(a\3)(A) (requiring,
if practicable, “(t]he administrating authority [to] make a preliminary
determination [in a review as to the amount of any antidumping duty]
within 245 days after the last day of the month in which occurs the
anniversary of the date of publication of the order, finding, or suspension
agreement for which the review . . . is requested, and a final determination
... within 120 days after the date on which the preliminary determination
is published.”).
13a
U.S.C. § 1677(35)(A),'° (B),"’ in either an investigation, see,
e.g., Corus Staal I, 259 F. Supp. 2d at 1261, or an admin-
istrative review, see, e.g., Timken Co. v. United States, 354
F.3d 1334, 1341-42 (Fed. Cir.), cert. denied, 125 S. Ct. 412
(2004) (“Timken”).
Despite these prior holdings, Corus argues that funda-
mental structural changes to the U.S. Antidumping statute,
as implemented in the Uruguay Round Agreements Act
(“URAA”), render zeroing inherently unreasonable, citing
recent WTO decisions for further support that zeroing is no
longer reasonable. See supra note 1. The Federal Circuit,
however, in addressing arguments similar to the ones Corus
now presents before the court, (1) expressly affirmed the
reasonableness of Commerce’s use of zeroing in an anti-
dumping administrative review, and (2) accorded no defer-
ence to Corus’s cited WTO cases, again concluding that
WTO decisions are not binding on the U.S. and cannot trump
domestic legislation. See Corus Staal BV v. Dep't of Com-
merce, 395 F.3d 1343, 1346-49 (Fed. Cir. 2005) (“Corus
Staal IT’) (holding that (1) “[ojur decision in Timken ad-
dressed Commerce’s interpretation of section 1677(35);” and
(2) “[w]e give Commerce substantial deference in its admini-
stration of the statute because of the foreign policy impli-
cations of a dumping determination”). While it is highly
debatable whether the intricacies of margin calculation in-
volve foreign policy, the Government’s response to WTO
' 19 U.S.C. § 1677(35)(A). The statute states: “The term ‘dumping
margin’ means the amount by which the normal value exceeds the export
price or constructed export price of the subject merchandise.” (emphasis
added).
'' 19 U.S.C. § 1677(35)(B). The statute states: “The term ‘weighted
average dumping margin’ is the percentage determined by dividing the
aggregate dumping margins determined for a specific exporter or pro-
ducer by the aggregate export prices and constructed export prices of such
exporter or producer.” (emphasis added).
14a
decisions vary; and, as the Federal Circuit noted, a court
should “not attempt to perform duties that fall within the
exclusive province of the political branches.” Jd. at 1349.
Because decisions by the Federal Circuit are binding on this
court, Corus’s arguments regarding the reasonableness of
zeroing, therefore, must fail.
Corus’s final argument was also addressed by the Federal
Circuit in Corus Staal II; however, Corus now relies on
changed facts. Specifically, Corus attempts to capitalize on
the Federal Circuit’s caveat in Corus Staal IT: “[Wle .. .
refuse to overturn Commerce’s zeroing practice based on any
ruling by the WTO or other international body unless and
until such ruling has been adopted pursuant to the specified
statutory scheme.” /d. (emphasis added). Corus argues that
the WTO’s Softwood Lumber decision, which prohibited the
use of zeroing in calculating dumping margins under the
weighted-average-to-weighted-average methodology, has been
“adopted pursuant to the specified statutory scheme,” and
therefore, the court should rule zeroing no longer reasonable,
not based on the WTO ruling itself, but on Commerce’s re-
interpretation of its policy in the wake of the adverse
Softwood Lumber ruling.
Before any agency regulation or practice can be modified
to conform to an adverse WTO ruling, Commerce must
follow the particular statutory scheme Congress enacted. See
id. This process mandates consultation between the various
political branches of the Executive and Congress “to deter-
mine whether or not to implement WTO reports and deter-
minations and, if so implemented, the extent of implementa-
tion.” /d.; see also 19 U.S.C. §§ 3533(f)-(g), 3538 (2000). "?
'? These steps include: (1) consultation between the U.S. Trade Repre-
sentative (““USTR”), agency, relevant congressional committees, and the
private sector; (2) notice and comment; (3) publication of the modification
and its explanation in the Federal Register; and (4) further consultation
15a
Corus submits that the “critical steps” had already been
taken by the time of the Federal Circuit’s decision in Corus
Staal II."° In Corus Staal I, the Federal Circuit was quite
clear that it “rejectfed] Softwood Lumber as nonbinding
because the finding therein was not adopted as per Congress’s
statutory scheme.” 395 F.3d at 1349. Therefore, until all of
the statutorily mandated procedures have been fully complied
with, it matters not whether the “critical steps” have already
been taken. Since the Federal Circuit issued its opinion in
Corus Staal II, Commerce has subsequently issued both its
preliminary and final determinations to implement Softwood
Lumber. See Notice of Determination Under Section 129 of
the Uruguay Round Agreements Act: Antidumping Measures
on Certain Softwood Lumber Products from Canada, P\.’s
Addendum 1 (Apr. 15, 2005) (“Sec. 129 Determ.”). Corus
stresses that the determination has been forwarded to the
USTR, but Commerce correctly notes that the USTR still
must direct the Department to implement the determination,
“in whole or in part.” Sec. 129 Determ. at 1, 38. See 19
U.S.C. § 3538(b)(4).'* Thus, the statutorily mandated pro-
cedure is incomplete.
between the USTR, agency, and relevant congressional committees re-
garding implementation of the new determination.
'* Corus identifies the “critical steps” as (1) U. S. notification to the
WTO that it would implement the Softwood Lumber decision, (2) con-
sultation with Commerce and Congress, and (3) instruction by the USTR
directing Commerce to draft a section 129 determination implementing
Softwood Lumber. P1.’s Reply Br. at 3 n.2.
'* 19 U.S.C. § 3538(b)(4) states that “{t]}he Trade Representative may,
after consulting with the administering authority and the congressional
committees .. . , direct the administering authority to implement, in whole
or in part, the determination . . . .” (showing that even after a final deter-
mination, the USTR need not instruct Commerce to implement it) (em-
phasis added).
l6a
Even if the USTR had directed the Department to im-
plement the determination in full, it still would not be
applicable to this case.'° Unlike a section 123 proceeding,
which concerns implementation of panel reports regarding a
WTO member’s general practices, a section 129 report only
affects the implementation of the specific investigation at
issue, in this case softwood lumber from Canada. Compare
URAA § 123, 19 U.S.C. § 3533, with URAA § 129, 19
U.S.C. § 3538.'° Moreover, the WTO Appellate Body’s
report in Softwood Lumber made clear that the only issue
before it was zeroing “as applied” in that case to Canadian
lumber: “no methodology, as such, has been challenged.”
Softwood Lumber, WT/DS264/AB/R at § 63 (emphases
in original). Further, even if the general methodology
were at issue, section 129(c)(1) of the URAA, 19 U.S.C.
§ 3538(c)(1), explicitly provides that any section 129 redeter-
mination by Commerce will only affect the unliquidated
entries of subject merchandise that “are entered, or withdrawn
from warchouse, for consumption on or after . . . the date on
which the Trade Representative directs the administering
authority . . . to implement that determination.” 19 U.S.C.
§ 3538(c)(1)(A) (emphasis added). In its section 129 deter-
mination, Commerce notes that the “SAA clearly provides,
'S On April 27, 2005, in accordance with sections 129(b)(4) and
129(c)(1)(B) of the URAA, 19 U.S.C. § 3538(b)(4), (c)(1)(B), the USTR,
after consulting with Commerce and Congress, directed the Department to
implement the determination. See Antidumping Measures on Certain
Softwood Lumber Products from Canada, 70 Fed. Reg. 22,636 (Dep't
Commerce May 2, 2005) (final determ. under sec. 129 of URAA)
{hereinafter Final Section 129 Determination).
'© Section 123(f\(3) discusses generally “whether to implement the
[WTO] report’s recommendation” and section 123(g)(1) regards “[cJhanges
in agency regulations or practice.” 19 U.S.C. § 3533(f)(3), (g)(1). Section
129, in contrast, discusses everything in terms of “particular proceedings,”
from the initial agency action, to the re-determination, to the imple-
mentation of the re-determination. 19 U.S.C. § 3538.
17a
‘such [section 129] determinations have prospective effect
only.”” URAA Statement of Administrative Action, accom-
panying H.R. Rep. No. 103-316, at 1026 (1994), reprinted in
1994 U.S.C.C.A.N. 4040, 4313 (“SAA”); Sec. 129 Determ. at
4; Final Sec. 129 Determ., 70 Fed. Reg. at 22,637.
Lastly, even Commerce’s section 129 determination imple-
menting Softwood Lumber limits the effect of the adverse
WTO ruling. In the redetermination, Commerce changed its
methodology from using a weighted-average-to-weighted-
average methodology, which was the subject of the “as
applied” challenge in Softwood Lumber, to using an indi-
vidual-to-individual transaction methodology. See Sec. 129
Determ. at 6, Final Sec. 129 Determ., 70 Fed. Reg. at 22,637.
Commerce’s change, however, is “not inconsistent with the
findings of the panel or the Appellate Body,” see 19 U.S.C.
§ 3538(b)(2), because the individual-to-individual method-
ology, as the WTO Appellate Body noted, was not addressed
by its Softwood Lumber ruling. Softwood Lumber, WT/
DS264/AB/R at § 63. Underscoring the specificity of this
change, Commerce noted that by switching its methodology it
was “not intending to implement an approach that applies to
all antidumping investigations.” Sec. 129 Determ. at 12; Final
Sec. 129 Determ., 70 Fed. Reg. at 22,639. Even with respect
to the Softwood Lumber investigation, and despite employing
the changed methodology, Commerce stil! used zeroing. In its
redetermination, Commerce stated that because the WTO rul-
ing “requires the offset for non-dumped sales [1.e., does not
aliow zeroing] only for a weighted-average-to-weighted-aver-
age comparison, we have not applied the offset for non-
dumped sales [i.e., we have used zeroing] in our transaction-
to-transaction comparison.” /d. Therefore, even if the USTR
directs Commerce to implement the process in one case, the
overall process has not changed.
In sum, the WTO decision-making process operates apart
from the decision-making in this court. WTO decision-mak-
18a
ing starts with an international agreement, which may not
match the domestic statute and which is interpreted pursuant
to different principles. From there, the process follows an
entirely separate implementation scheme. Had the Govern-
ment appeared here saying it had lost in the WTO, with
respect to this very administrative determination, and it had
complied with the entire statutory framework, to the effect
that it was reversing its position, even as to a past deter-
mination, then the court would have to consider what to do.
This, however, has not happened, and the court is bound by
circuit precedent upholding zeroing.
III. Commerce’s Change In Methodology For Selecting The
Sales Used In The Margin Calculation Is Reasonable And
In Accordance With Law
Corus’s database consists of two categories of U.S. sales:
constructed export price sales, which were made through
Corus’s U. S. affiliate, and export price sales, which were
made by Corus.'’ In the Preliminary Results, Commerce
selected the U.S. sales to be included in the margin calcula-
tion, regardless of whether the sale was CEP or EP, on the
basis of whether the date of sale was within the POR. This
meant that certain EP sales—those with a date of sale prior to
'7 «Export price’ means the price at which the subject merchandise is
first sold (or agreed to be sold) before the date of importation by the
producer or exporter of the subject merchandise outside of the United
States to an unaffiliated purchaser in the United States or to an unaffiliated
purchaser for exportation to the United States, as adjusted under sub-
section (c).” 19 U.S.C. § 1677a(a) (emphasis added).
““(Cjonstructed export price’ means the price at which the subject
merchandise is first sold (or agreed to be sold) in the United States before
or after the date of importation by or for the account of the producer or
exporter of such merchandise or by a seller affiliated with the producer
or exporter, to a purchaser not affiliated with the producer or exporter,
as adjusted under subsections (c) and (d).” /d. at § 1677a(b) (emphasis
added).
19a
the POR but with an entry date during the POR—were
excluded from the margin calculation.
Prior to the Final Results, U. S. Steel argued in its case
brief that the date of sale methodology used to select U.S.
sales was incorrect, as applied to Corus’s EP sales. In sup-
port, U. S. Steel showed that, consistent with Commerce’s
antidumping questionnaire, Commerce’s normal practice was
to use date of sale for CEP sales and date of entry for EP
sales. See Commerce's Antidumping Duty Questionnaire (Jan.
9, 2003), at C-1, P.R. Doc. 207, Def.-Intervenor’s App., Tab
1, at 2 (“Report each U.S. sale of merchandise entered for
consumption during the POR, except: (1) for EP sales, if you
do not know the entry dates, report each transaction involving
merchandise shipped during the POR; and (2) for CEP sales
made after importation, report each transaction that has a date
of sale within the POR.”). EP sales, which by statute must
take place prior to importation (i.e., date of entry) normally
can be tied to entries during the period. CEP sales, on the
other hand, which may take place following importation, are
often difficult or impossible to tie to specific entries.
In response, Corus argued that the sales-based approach
used in the Preliminary Results should be applied to all of
its sales to ensure no transactions escape review because:
(1) date of sale corresponds to its audited financial records
and its use would require no end-of-period reconciliations,
and (2) given the length of time between entry date and date
of sale for the JIT inventory sales, there likely would be
entries sold from JIT inventory that would not be invoiced
until after the conclusion of the review period and, thus, too
late to be captured by the review; and under Commerce’s
entry date methodology, such sales would never be reported
because they could not be included in any subsequent review.
See Corus’s Reply Br., (Jan. 23, 2004), at 7-9, P.R. Doc. 80,
Pl.’s App., Tab 3, at 4-6; see also Issues Mem. to Steel from
the Netherlands, at cmt. 10.
20a
In the final results, Commerce rejected Corus’s position.
Commerce stated that
We agree with petitioners. In accordance with the
Department’s normal practice, for those sales which
occurred prior to importation, we have used the date of
entry to select those transactions used in our analysis.
This methodology comports with the Department’s
standard administrative review questionnaire, which
instructs respondents to report such sales of merchandise
which entered for consumption during the POR. This
methodology is also consistent with that used in other
antidumping duty administrative reviews. Thus, for these
final results, we have amended our margin calculation
program so that for sales which occurred prior to im-
portation, the entry date was used to define those sales
used in our analysis.
Issues Mem. To Steel from the Netherlands (June 16, 2004),
at cmt. 10, P.R. Doc. 398, Def.-Intervenor’s App., Tab 6, at 4
(citation omitted). In implementing its decision, Commerce
did the following: (1) for sales classified as CEP, it continued
to use the date of sale; (2) for sales classified as EP, where the
sale took place prior to importation, it used the date of entry;
and (3) for sales classified as EP, but where the invoice date
(and hence the shipment date and presumed date of salc) took
place after importation, it used the date of sale.
A. Commerce Properly Used Its Normal Method For
Corus’s CEP And Pre-Importation EP Sales
Corus argues that Commerce should have used the date of
sale methodology for all of its sales. Corus further argues that
Commerce may not use different bases (which it refers to as
“hybrid”) in the same administrative review to select the sales
to be analyzed. U.S. Steel disagrees.
The statute does not specify whether Commerce should use
the date of entry or the date of sale as the basis on which to
2la
select transactions for review. See Helmerich & Payne, Inc. v.
United States, 22 CIT 928, 933, 24 F. Supp. 2d 304, 310
(1998) (“[T]he statute is silent with respect to the universe of
sales to be used in calculating dumping margins .. . .”).
Commerce has adopted a regulation, however, that gives it
the flexibility to use date of sale, date of export, or date of
entry, as appropriate. The regulation provides that
[flor requests received during the first anniversary
month after publication of an order . . . an administrative
review under this section will cover, as appropriate,
entries, exports, or sales during the period from the date
of suspension of liquidation . . . to the end of the month
immediately preceding the first anniversary month.
19 C.F.R. § 351.213(e)(1)(ii) (emphasis added).
Commerce’s general preference is to use entries during the
POR as the basis for selecting the U.S. sales to be analyzed. In
Certain Welded Carbon Steel Pipes and Tubes from Thailand,
63 Fed. Reg. 55,578, 55,589 (Dep’t Commerce Oct. 16, 1998)
(final admin. rev.), for example, Commerce analyzed all U. S.
sales that entered during the POR, stating that
[a]lthough the Department’s regulations at section
352.213 (c) provide some flexibility in this issue, the
Department’s preference is to review sales based on
entry dates unless there are compelling circumstances
that warrant a different approach to determining the
universe of sales to be examined during a particular
review.
Id. at cmt. 9. Similarly, in Jssues & Decision Memorandum to
Certain Corrosion-Resistant Carbon Steel Flat Products from
Canada, 70 Fed. Reg. 13,458 (Dep’t Commerce Mar. 21,
2005) (final admin. rev.), the Department explained that
[w]e note that in section 751(a)(2)(A) of the Act [19
U.S.C. § 1675(a)(2)(A)], a dumping calculation should
22a
be performed for each entry during the POR. While
section 351.213(e) of the Department’s regulations does
give the Department some flexibility in this regard by
Stating that the review can be based on entries, exports,
or sales, it is our preference to base the review on entries
where possible. In this case, we find no compelling
reason to move away from our standard practice of using
entries to determine the universe of U.S. sales to be
reported for EP sales.
Id. at cmt. 5. See also Helmerich, 22 CIT at 935-36, 24 F.
Supp. 2d at 311 (quoting Commerce as stating that its “usual
practice in export price situations is to review and assess
duties on entries within the POR, regardless of whether the
sales occurred prior to the review period’). Therefore, Com-
merce’s review of the EP sales in this case, based on the date
of entry, is in accordance with its standard methodology.
Furthermore, the court has upheld Commerce’s entry-based
methodology as reasonable. In Helmerich, the court upheld
Commerce’s use of the date of entry as a selection criterion,
even though the merchandise that entered during the POR
came from a foreign trade zone and had been sold to the
customer before the POR and before the antidumping duty
order had been entered. 22 CIT at 928, 938-39, 24 F. Supp.
2d at 306, 313-14. The court explained that the entry-based
approach resulted in a more accurate measure of dumping and
ensured that all relevant sales were considered. Jd. at 937-38,
24 F. Supp. 2d at 313.
Although Commerce’s general preference is to use the date
of entry, it often uses the date of sale as the selection criterion
for CEP sales. This is because, in many CEP situations, the
sale is made after importation and it is often difficult or
impossible to tie entries to sales. See id. at 938 n.9, 24 F.
Supp. 2d at 313 (“In certain situations such as CEP situations
where Commerce cannot tie entries to future sales, or when
the Department cannot ascertain entry dates, Commerce
23a
cannot calculate margins based on sales linked to entries.
Therefore, Commerce may resort to the less accurate
approach of calculating margins based on possibly unlinked
sales during the POR.”); see also Dynamic Random Access
Memory Semiconductors of One Magabit or Above from the
Republic of Korea, 66 Fed. Reg. 30,688, 30,692 (Dep’t
Commerce June 7, 2001) (prelim. admin. rev.) (using sales
made during the POR to calculate the weighted-average
dumping margins for CEP transactions). This approach has
been upheld as reasonable.
In NSK Ltd. v. United States, 17 CIT 590, 594—95, 825 F.
Supp. 315, 320 (1993), for example, the court upheld Com-
merce’s decision to examine exporter’s sales price (“ESP”)
transactions (now CEP transactions under the URAA) on the
basis of sales made during the POR. In holding, inter alia,
that Commerce’s review of all CEP sales made during the
POR, rather than review of only the subject merchandise
entered and sold during the review period, was reasonable
and in accordance with the law, the court noted Commerce’s
reasoning with respect to these CEP sales: (1) there is usually
a lag time between entry and sale, (2) entry data is often
unavailable, (3) a dumping margin cannot be determined
without a sale, (4) dumping on sales made during the POR is
representative of dumping on entries made during the POR,
and (5) review of sales, which can cover many entries of
merchandise, can eliminate the need for conducting multiple
reviews of the same information. /d. at 595, 24 F. Supp. 2d at
320; see also Ad Hoc Comm. of S. Cal. Producers of Gray
Portland Cement v. United States, 19 CIT 1398, 1407, 914 F.
Supp. 535, 544 (1995) (upholding Commerce’s use of sales,
rather than entries, during the POR to calculate a dumping
margin as selection criterion for CEP sales). Therefore, Com-
merce’s use of the date of sale as a selection criterion for
Corus’s CEP sales is in accordance with its standard pro-
cedure and is reasonable.
24a
Corus relies on Hynix Semiconductor, Inc. v. United States,
248 F. Supp. 2d 1297 (Ct. Int'l Trade 2003), to argue that
Commerce’s “hybrid” methodology—using date of entry to
select those EP transactions where the sale had occurred prior
to importation, but using date of sale to select all other EP
and all CEP transactions—is unreasonable.'* In Hynix, the
court sustained Commerce’s decision to use the date of sale
as the selection criterion for CEP sales at issue. /d. at 1303-—
04. The court found that Commerce properly abandoned the
method used in the preliminary results, where it had cal-
culated the dumping margin by using the CEP sales made
during the POR, plus CEP entries made during the pcriod
(which were sold after the POR). /d. at 1300. The court
explained that “nothing in Commerce’s regulations supports
the use of a hybrid sales plus POR-entries approach for
calculating dumping margins.” /d. at 1304. This case is differ-
ent. Here, Commerce did not use such a “hybrid” approach; it
used two distinct approaches—sales during the POR for CEP
transactions and entries during the POR for pre-importation
EP transactions—both of which were previously upheld as
reasonable.
'* Corus also relies on //ynix to argue that Commerce should have con-
tinued to use the same approach to be consistent with its Preliminary
Results. Although the Hynix court did recognize the value of being con-
sistent across administrative reviews, see 248 F. Supp. 2d at 1304 (noting
that Hynix involved the sixth administrative review), the review here, in
contrast, is only the first administrative review of Corus’s sales and hence,
there is no prior review with which to be consistent. See Helmerich, 22
CIT at 937 n.8, 24 F. Supp. 2d at 313 (“In contrast [to Portable Electric
Typewriters from Japan, 56 Fed. Reg. 56,393, 56,393 (Dep’t Commerce
Nov. 4, 1991), which was a review covering the periods May 1, 1988,
through April 30, 1989, and May 1, 1989, through April 30, 1990, for an
antidumping duty order entered in May 1980], this case deals with a first
administrative review. Therefore, Commerce was not constrained to util-
ize a sales-based approach to remain consistent.”).
25a
Furthermore, in Circular Welded Non-Alloy Steel Pipe
from the Republic of Korea, 63 Fed. Reg. 39,071, 39,072
(July 21, 1998) (am. final admin. rev.), Commerce followed
this approach, reviewing all CEP sales with a sale date during
the POR and all EP sales with an entry date during the POR.
Therefore, Commerce’s use of the date of entry to select
Corus’s pre-importaticn EP sales, and the date of sale to
select Corus’s CEP sales is reasonable and in accordance with
its prior practice. Thus, as to these two categories, there is no
error.
B. Commerce’s Use Of Sales Date To Select Corus’s
“Post-Importation” EP Sales Was Proper
Corus also argues that Commerce’s methodology was im-
proper because Commerce reviewed Corus’s pre-importation
EP sales differently from its “post-importation” EP sales.
Commerce did use the date of sale to select those EP-
classified sales that Corus invoiced after importation. Yet, as
discussed above, the statute defines EP sales as those trans-
actions occurring “before the date of importation” while CEP
sales may occur “before or after the date of importation.” See
supra note 17. Thus, because the EP sales at issue could not
be treated in the same manner as the other EP sales, Com-
merce treated them as it treated CEP sales—by reviewing
them according to date of sale, because the same matching
difficulties that exist for post-importation CEP sales also exist
for “pest-importation” EP sales, as both sides admitted at oral
argument.
Corus argucs that because the only parties to these “post-
importation” EP sales were Corus and the particular U. S.
customer (not a U. S. affiliate), and because Corus maintained
its own U. S. inventory and invoicing, the sales, were in fact,
properly classified as EP sales and should have been selected
26a
on the same basis as other EP sales.'” In AK Steel Corp. v.
United States, 226 F.3d 1361, 1369-70 (Fed. Cir. 2000), the
Federal Circuit examined the definitions of EP and CEP and
noted that the two factors dispositive of the choice between
the two classifications are (1) whether the sale takes place
inside or outside the United States, and (2) whether it is made
by an affiliate. Referring to the CEP definition, the court then
defined the term “seller” as “one who contracts to sell” and
the term “sold” as the “transfer of ownership or title.” /d.
at 1371.
First, with respect to the location factor, it is undisputed
that the invoicing took place in the U.S. after importation,
which, as indicated, presents the same entry-sale disconnect
normally associated with CEP sales. With respect to the
second factor, the record shows that Corus uses a U.S.-based
entity to facilitate these sales. This is particularly so in
reference to the JIT inventory that Corus maintains in the U.
S. for certain customers. Corus’s U.S.-based affiliate, Corus
Steel USA Inc. (“CSUSA”) serves as a “facilitator, com-
munications link and processor of certain documentation for
{Corus’s] U.S. imports and sales. CSUSA never takes title to,
takes possession of, or resells Corus’ steel and does not
possess negotiating authority over steel manufactured by
[Corus].” See Corus Resp. to Commerce Antidumping Duty
Questionnaire (Jan. 30, 2003), at A-16, P.R. Doc. 13, Pl.’s
App., Tab 7, at 3.
Although CSUSA neither takes ownership of the steel nor
becomes involved in the contracting process, it appears that
these sales could not be executed without CSUSA. Thus,
because these sales (1) were at least finalized in the U.S. post-
' Corus also argues that because the sales were “agreed to” in the
Netherlands before importation, they were EP sales. The definitions of
both CEP and EP include the phrase “first sold (or agreed to be sold).” 19
U.S.C. § 1677a(a), (b).
27a
importation, and (2) were “facilitated” by a U.S.-based affil-
iate, it was understandable that Commerce selected them
using the same basis that it used to select CEP sales..
Finally, Corus could point to no distortion caused by this
manner of selection. Commerce, while not treating the sales
as CEP sales for other purposes, selected the “post-importa-
tion” EP sales for review based on a CEP sales date meth-
odology because such sales had earmarks of CEP sales
and posed the same difficulty when trying to connect them
to earlier entry dates. Therefore, Commerce’s selection of
Corus’s “post-importation” EP sales on the same basis as its
CEP sales is reasonable.
CONCLUSION
Because Commerce’s use of zeroing, and its methodology
for selecting sales used in the margin calculation are rea-
sonable and in accordance with the law, Corus’s Motion for
Judgment on the Agency Record is denied, and Commerce’s
Final Results are sustained.
/s/ Jane A. Restani
JANE A. RESTANI
CHIEF JUDGE
Dated: New York, New York
This 19th day of July, 2005
28a
APPENDIX C
DEPARTMENT OF COMMERCE
International Trade Administration
[A-421-807]
Certain Hot-Rolled Carbon Steel Flat Products From the
Netherlands; Amended Final Results of Antidumping Duty
Administrative Review
AGENCY: Import Administration, International Trade Ad-
ministration, Department of Commerce.
ACTION: Notice of amended final results of antidumping
duty administrative review.
SUMMARY: On June 16, 2004, the Department of Com-
merce (the Department) published in the Federal Register its
notice of final results of the antidumping duty administrative
review of certain hot-rolled carbon steel flat products from
the Netherlands for the period May 3, 2001 through October
31, 2002. See Certain Hot-Rolled Carbon Steel Flat Products
from the Netherlands; Final Results of Antidumping Duty
Administrative Review, 69 FR 33630 (June 16, 2004). On
June 15, 2004, in accordance with 19 CFR 351.224(c)(2), we
received a timely-filed ministerial error allegation from
respondent, Corus Staal BV (Corus).' We did not receive
ministerial error allegations from petitioners.” Based on our
analysis of Corus’ ministerial error allegation, the Department
has revised the antidumping duty margin for Corus. Accord-
ingly, we are amending our final results.
' We released disclosure documents to respondent and petitioners on
June 9, 2004, thereby making June 14, 2004 the deadline for submitting
ministerial error comments. However, in response to a request by respon-
dent, we extended the deadline by one day, until June 15, 2004.
* Petitioners are United States Steel Corporation and Nucor Corpo-
ration.
29a
EFFECTIVE DATE: July 22, 2004.
FOR FURTHER INFORMATION CONTACT:
Deborah Scott or Robert James, Antidumping and Coun-
tervailing Duty Enforcement Group III, Office Eight, Import
Administration, International Trade Administration, U.S.
Department of Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230, telephone: (202) 482-
2657 or (202) 482-0649, respectively.
SUPPLEMENTARY INFORMATION:
Scope of the Review
For purposes of this order, the products covered are certain
hot-rolled carbon steel flat products of a rectangular shape, of
a width of 0.5 inch or greater, neither clad, plated, nor coated
with metal and whether or not painted, varnished, or coated
with plastics or other non-metallic substances, in coils
(whether or not in successively superimposed layers), re-
gardless of thickness, and in straight lengths, of a thickness of
less than 4.75 mm and of a width measuring at least 10 times
the thickness. Universal mill plate (i.e., flat-rolled products
rolled on four faces or in a closed box pass, of a width
excceding 150 mm, but not exceeding 1250 mm, and of a
thickness of not less than 4.0 mm, not in coils and without
patterns in relief) of a thickness not less than 4.0 mm is not
included within the scope of this review. Specifically
included within the scope of this order are vacuum degassed,
fully stabilized (commonly referred to as interstitial-free (IF))
steels, high strength low alloy (HSLA) steels, and the
substrate for motor lamination stecls. IF steels are recognized
as low carbon steels with micro-alloying levels of elements
such as titanium or niobium (also commonly referred to as
columbium), or both, added to stabilize carbon and nitrogen
elements. HSLA steels are recognized as steels with micro-
alloying levels of elements such as chromium, copper,
niobium, vanadium, and molybdenum. The substrate for
30a
motor lamination steels contains micro-alloying levels of
elements such as silicon and aluminum.
Steel products to be included in the scope of this order,
regardless of definitions in the Harmonized Tariff Schedule
of the United States (HTS), are products in which: (1) Iron
predominates, by weight, over cach of the other contained
elements; (ii) the carbon content is 2 percent or less, by
weight; and (iii) none of the clements listed below exceeds
the quantity, by weight, respectively indicated:
1.80 percent of manganese, or
2.25 percent of silicon, or
1.00 percent of copper, or
0.50 percent of aluminum, or
1.25 percent of chromium, or rd
0.30 percent of cobalt, or
0.40 percent of lead, or
1.25 percent of nickel, or
0.30 percent of tungsten, or
0.10 percent of molybdenum, or
0.10 percent of niobium, or
0.15 percent of vanadium, or
0.15 percent of zirconium.
All products that meet the physical and chemical descrip-
tion provided above are within the scope of this order unless
otherwise excluded. The following products, by way of
example, are outside or specifically excluded from the scope
of this order:
e Alloy hot-rolled steel products in which at least one of
the chemical elements exceeds those listed above (including,
e.g., ASTM specifications A543, A387, A514, A517, A506).
e Society of Automotive Engineers (SAE)/American [ron
and Steel Institute (AISI) grades of series 2300 and higher.
sbull; Ball bearings steels, as defined in the HTS. sbull; Tool
steels, as defined in the HTS.
3la
e Silico-manganese (as defined in the HTS) or silicon elec-
trical steel with a silicon level exceeding 2.25 percent. sbull;
ASTM specifications A710 and A736. sbull; USS Abrasion-
resistant steels (USS AR 400, USS AR 500).
e All products (proprietary or otherwise) based on an alloy
ASTM specification (sample specifications: ASTM A506,
A507).
e Non-rectangular shapes, not in coils, which are the result
of having been processed by cutting or stamping and which
have assumed the character of articles or products classified
outside chapter 72 of the HTS.
The merchandise subject to this order is- classified in
the HTS at subheadings: 7208.10.15.00, 7208.10.30.00,
7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30,
7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30,
7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15,
7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30,
7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00,
7208.54.00.00, 7208.90.00.00, 7211.14.00.90, 7211.19.15.00,
7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00,
7211.19.75.30, 7211.19.75.60, and 7211.19.75.90. Certain
hot-rolled flat-rolled carbon stecl flat products covered by this
order, including: Vacuum degassed fully stabilized; high
strength low alloy; and the substrate for motor lamination
steel may also enter under the following tariff numbers:
7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00,
7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30,
7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00,
7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Sub-
ject merchandise may also enter under 7210.70.30.00,
7210.90.90.00, 7211.14.00.30, 7212.40.10.00, 7212.40.50.00,
and 7212.50.00.00. Although the HTS subheadings are
provided for convenience and U.S. Customs purposes, the
written description of the scope of this order is dispositive.
32a
Amended Final Results of Review
On June 15, 2004, Corus timely filed, pursuant to 19 CFR
351.224(c)(2), an allegation that the Department made one
ministerial error in its final results. For EP transactions with a
sale date (i.e., invoice date) prior to importation, Corus states
the Department used date of entry to select the transactions
used in its analysis. Corus alleges that for these transactions,
the Department erred by using the entry date for purposes of
currency conversions rather than date of sale. Therefore,
Corus requests that the Department correct this error by using
date of sale for currency conversions for those EP trans-
actions with a sale date prior to importation. Petitioners
submitted no rebuttal comments to this ministerial error
allegation.
We agree with Corus. The Tariff Act of 1930, as amended
(the Tariff Act), as well as the Department’s regulations,
define a ministerial error as one involving “addition, subtrac-
tion, or other arithmetic function, clerical errors resulting
from inaccurate copying, duplication, or the like, and any
other type of unintentional error which the Secretary consid-
ers ministerial.” See section 751(h) of the Tariff Act and 19
CFR 351.224(f). The Department’s regulations also provide
that “[i]n an antidumping proceeding, the Secretary will con-
vert foreign currencies into United States dollars using the
rate of exchange on the date of sale of the subject merchan-
dise.” See 19 CFR 351.415(a). For purposes of our analysis,
in utilizing entry date to select EP sales with a sale date prior
to importation, we unintentionally set date of sale equal to
entry date for those transactions. Because invoice date should
have been used as date of sale for those transactions for
purposes of currency conversions, we have corrected this
inadvertent error by using date of sale for purposes of
currency conversions. See lines 2601, 2608, and 2901 of the
amended U.S. sales program.
33a
In accordance with 19 CFR 351.224(e), we have amended
the final results, of the 2001-2002 antidumping duty admin-
istrative review of certain hot-rolled carbon steel flat products
from the Netherlands, as noted above. As a result of this
correction, Corus’ margin decreased from 4.94 percent to
4.80 percent ad valorem.
The Department shall determine and U.S. Customs and
Border Protection (CBP) shall assess antidumping duties on
all appropriate entries. As a result of the Court of Inter-
national Trade’s decision in Corus Staal BV et al. v. United
States, Consol. Court No. 02-00003, Slip Op. 03-127 (CIT
September 29, 2003), we will not assess duties on merchan-
dise that entered between October 30, 2001 and November
28, 2001, inclusive. For more information, see Certain Hot-
Rolled Carbon Steel Flat Products From The Netherlands:
Notice of Final Court Decision and Suspension of Liqui-
dation, 68 FR 60912 (October 24, 2003). Thus, in accordance
with 19 CFR 351.212(b)(1), we will calculate an importer-
specific ad valorem assessment rate for merchandise based on
the ratio of the total amount of antidumping duties calculated
for the examined sales made during the POR to the total
customs value of the sales used to calculate those duties.
Where the importer-specific assessment rate is above de
minimis, we will instruct CBP to assess duties on all ap-
propriate entries of subject merchandise by that importer.
This rate will be assessed uniformly on all entries of that
particular importer made duryng the periods May 3, 2001
through October 29, 2)! aid November 29, 2001 through
October 31, 2002. The Department will issue appropriate
assessment instructions directly to CBP within 15 days of
publication of the final results of review.
The amended cash deposit requirement is effective for all
shipments of subject merchandise manufactured by Corus
entered, or withdrawn from warehouse, for consumption on
or after the date of publication of this notice and shall remain
34a
in effect until publication of the final results of the next
administrative review.
These amended final results are issued and published in
accordance with section 751(h) of the Tariff Act and 19 CFR
351.224.
Dated: July 14, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.
[FR Doc. 04-16743 Filed 7-21-04; 8:45 am]
35a
APPENDIX D
DEPARTMENT OF COMMERCE
International Trade Administration
[A-421-807]
Certain Hot-Rolled Carbon Stcel Flat Products From the
Netherlands; Final Results of Antidumping Duty Adminis-
trative Review
AGENCY: Import Administration, International Trade Ad-
ministration, Department of Commerce.
ACTION: Notice of final results of antidumping duty admin-
istrative review of certain hot-rolled carbon steel flat products
from the Netherlands.
SUMMARY: On December 8, 2003, the Department of
Commerce (the Department) published the preliminary results
of the administrative review of the antidumping duty order on
certain hot-rolled carbon steel flat products from the Nether-
lands. See Certain Hot-Rolled Carbon Steel Flat Products
from the Netherlands; Preliminary Resulis of Antidumping
Duty Administrative Review, 68 FR 68341 (December 8,
2003) (Preliminary Results). This review covers imports of
subject merchandise from Corus Staal BV (Corus Staal) to
- the United States during the period May 3, 2001 to October
31, 2002. Based on our analysis of the comments received,
we have made changes to the margin calculation. Therefore,
the final results differ from the preliminary results. The final
weighted-average dumping margin for the reviewed firm is
listed below in the section entitled “Final Results of Review.”
DATES: Effective Date: July 16, 2004.
FOR FURTHER INFORMATION CONTACT:
Deborah Scott or Robert James, AD/CVD Enforcement,
Group III, Import Administration, International Trade Admin-
istration, U.S. Department of Commerce, 14th Street and
36a
Constitution Avenue, NW., Washington, DC 20230, tele-
phone: (202) 482-2657 or (202) 482- 0649, respectively.
SUPPLEMENTARY INFORMATION:
Background
On December 8, 2003, the Department published in the
Federal Register the Preliminary Results of the administrative
review of the antidumping duty order on certain hot-rolled
carbon steel flat products from the Netherlands for the period
May 3, 2001 to October 31, 2002. In response to the Depart-
ment’s invitation to comment on the preliminary results
of this review, Corus (respondent) and United States Steel
Corporation (USSC) and Nucor Corporation (Nucor) (collec-
tively, petitioners) filed their case briefs on January 14, 2004.
Corus, USSC, and Nucor submitted rebuttal briefs on January
23, 2004. On February 12, 2004, we published in the Federal
Register our notice of the extension of time limits for this
review. See Certain Hot-Rolled Carbon Steel Flat Products
from the Netherlands; Antidumping Duty Administrative Re-
view; Extension of Time Limit, 69 FR 6939 (February 12,
2004). This extension established the deadline for this final as
June 5, 2004. Since this date falls on a Saturday, i.e., a non-
business day, the signature date for this final is June 7, 2004.
Period of Review
The period of review (POR) is May 3, 2001 to October 31,
2002.
Scope of the Review
For purposes of this order, the products covered are certain
hot-rolled carbon steel flat products of a rectangular shape, of
a width of 0.5 inch or greate:, neither clad, plated, nor coated
with metal and whether or not painted, varnished, or coated
with plastics or other non-metallic substances, in coils
(whether or not in successively superimposed layers), regard-
less of thickness, and in straight lengths, of a thickness of less
37a
than 4.75 mm and of a width measuring at least 10 times the
thickness. Universal mill plate (i.e., flat-rolled products rolled
on four faces or in a closed box pass, of a width exceeding
150 mm, but not exceeding 1250 mm, and of a thickness of
not less than 4.0 mm, not in coils and without patterns in
relief) of a thickness not less than 4.0 mm is not included
within the scope of this review. Specifically included within
the scope of this order are vacuum degassed, fully stabilized
(commonly referred to as interstitial-free (IF)) steels, high
strength low alloy (HSLA) steels, and the substrate for motor
lamination stcels. IF steels are recognized as low carbon
steels with micro-alloying levels of elements such as titanium
or niobium (also commonly referred to as columbium), or
both, added to stabilize carbon and nitrogen elements. HSLA
Steels are recognized as steels with micro-alloying levels of
elements such as chromium, copper, niobium, vanadium, and
molybdenum. The substrate for motor lamination stcels
contains micro-alloying levels of elements such silicon and
aluminum.
Stecl products to be included in the scope of this order,
regardless of definitions in the Harmonized Tariff Schedule
of the United States (HTS), are products in which: (1) Iron
predominates, by weight, over each of the other contained
elements; (ii) the carbon content is 2 percent or less, by
weight; and (iii) none of the elements listed below exceeds
the quantity, by weight, respectively indicated:
1.80 percent of manganese, or
2.25 percent of silicon, or
1.00 percent of copper, or
0.50 percent of aluminum, or
1.25 percent of chromium, or
0.30 percent of cobalt, or
0.40 percent of lead, or
1.25 percent of nickel, or
0.30 percent of tungsten, or
38a
0.10 percent of molybdenum, or
0.10 percent of niobium, or
0.15 percent of vanadium, or
0.15 percent of zirconium.
All products that meet the physical and chemical
description provided above are within the scope of this order
unless otherwise excluded. The following products, by way of
example, are outside or specifically excluded from the scope
of this order:
¢ Alloy hot-rolled steel products in which at least one of the
chemical elements exceeds those listed above (including, e.g.,
ASTM specifications A543, A387, A514, A517, A506).
* Society of Automotive Engineers (SAE)/American Iron
and Steel Institute (AISI) grades of series 2300 and higher.
¢ Ball bearings steels, as defined in the HTS.
* Tool steels, as defined in the HTS.
¢ Silico-manganese (as defined in the HTS) or silicon
electrical steel with a silicon level exceeding 2.25 percent.
* ASTM specifications A710 and A736.
¢ USS Abrasion-resistant steels (USS AR 400, USS AR
500).
¢ All products (proprietary or otherwise) based on an alloy
ASTM specification (sample specifications: ASTM A506,
A507).
* Non-rectangular shapes, not in coils, which are the result
of having been processed by cutting or stamping and which
have assumed the character of articles or products classified
outside chapter 72 of the HTS.
The merchandise subject to this order is classified in
the HTS at subheadings: 7208.10.15.00, 7208.10.30.00,
7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30,
39a
7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30,
7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15,
7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30,
7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00,
7208.54.00.00, 7208.90.00.00, 7211.14.00.90, 7211.19.15.00,
7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00,
7211.19.75.30, 7211.19.75.60, and 7211.19.75.90. Certain
hot-rolled flat-rolled carbon steel flat products covered by this
order, including: vacuum degassed fully stabilized; high
strength low alloy; and the substrate for motor lamination
steel may also enter under the following tariff numbers:
7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00,
7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.1 1.90.30,
7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00,
7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Sub-
ject merchandise may also enter under 7210.70.30.00,
7210.90.90.00, 7211.14.00.30, 7212.40.10.00, 7212.40.50.00,
and 7212.50.00.00. Although the HTS subheadings are
provided for convenience and U.S. Customs purposes, the
written description of the scope of this order is dispositive.
Analysis of Comments Received
All issues raised in the case and rebuttal briefs by parties to
this administrative review are addressed in the “Issues and
Decision Memorandum” (Decision Memorandum) from
Joseph A. Spetrini, Deputy Assistant Secretary for Import
Administration, to James J. Jochum, Assistant Secretary for
Import Administration, dated June 7, 2004, which is hereby
adopted by this notice. A list of the issues which parties have
raised and to which we have responded, all of which are in
the Decision Memorandum, is attached to this notice as an
appendix. Parties can find a complete discussion of all issues
raiscd in this review and the corresponding recommendations
in this public memorandum, which is on file in the Central
Records Unit, room B-099, of the main Department building.
In addition, a complete version of the Decision Memorandum
40a
can be accessed directly via the Internet at http://www.ia.
ita.doc.gov. The paper copy and clectronic version of the
Decision Memorandum are identical in content.
Changes Since the Preliminary Results
Based on our analysis of the comments received, we have
made the following changes to the margin calculation:
* We have modified the weighting factor for the quality
field in our model match hierarchy so that it consists of two
digits rather than one.
¢ We have excluded entries which occurred between
October 30, 2001 and November 28, 2001, inclusive (“gap
period”), from the calculation of the dumping margin. We
have also revised the calculation of the assessment rate to
exclude the gap period entries from the numerator.
* We have amended our margin calculation program so that
for sales which occurred prior to importation, the entry date
was used to define the transactions used in our analysis.
* We have revised the adjustment made to the cost of
manufacturing for the unexplained difference found in Corus’
cost reconciliation. The difference in the reconciliation was
due to both a change in finished goods inventory and a small
unexplained difference in the cost reconciliation. We have
continued to adjust the cost of manufacture for the change in
finished goods inventory but have no longer adjusted for the
minor unexplained difference in the cost reconciliation.
* We have amended our calculation of variable costs of
manufacture (VCOMH/U) to reflect the revised startup costs
(RSTARTUP).
' We note that gap period entries had already been excluded from the
denominator of the assessment rate for the preliminary results, and
continue to be excluded from the denominator of the assessment rate for
the final results.
4la
These changes are discussed in the relevant sections of the
Decision Memorandum.
Final Results of Review
We determine that the following weighted-average per-
centage margin exists for the period May 3, 2001 to October
31, 2002:
Weighted
Manufacturer/exporter average
percentage
Sivlittatisaaleesdvecmedesapeiauiihidiienediiin margin
IOUT 2 sandisiisidansaiinieiioases 4.94
Assessment
The Department shall determine and U.S. Customs and
Border Protection (CBP) shali assess antidumping duties on
all appropriate entries. As a result of the Court of Inter-
national Trade’s decision in Corus Staal BV et al. v. United
States, Consol. Court No. 02- 00003, Slip Op. 03-127 (CIT
September 29, 2003), we will not assess duties on merchan-
dise that entered between October 30, 2001 and November
28, 2001, inclusive. For more information, see Certain Hot-
Rolled Carbon Steel Flat Products From The Netherlands:
Notice of Final Court Decision and Suspension of Liqui-
dation, 68 FR 60912 (October 24, 2003). Thus, in accordance
with 19 CFR 351.212(b)(1), we will calculate an importer-
specific ad valorem assessment rate for merchandise based on
the ratio of the total amount of antidumping duties calculated
for the examined sales made during the POR’ to the total
’ Since we have not included entries which occurred between October
30, 2001 and November 28, 2001 in the calculation of the dumping
margin (see “Changes Since the Preliminary Results”), the “total amount
of antidumping duties calculated for the examined sales made during the
42a
customs value of the sales used to calculate those duties.
Where the importer-specific assessment rate is above de
minimis, we will instruct CBP to assess duties on all
appropriate entries of subject merchandise by that importer.
This rate will be assessed uniformly on all entries of that
particular importer made during the periods May 3, 2001
through October 29, 2001 and November 29, 2001 through
October 31, 2002. The Department will issue appropriate
assessment instructions directly to CBP within 15 days of
publication of the final results of review.
Cash Deposit Requirements
The following cash deposit requirements will be effective
upon publication of these final results for all shipments of the
subject merchandise entered, or withdrawn from warehouse,
for consumption on or after the publication date of these final
results of administrative review, as provided by section
751{a)(1) of the Tariff Act: (1) The cash deposit rate for the
reviewed company will be the rate listed above; (2) if the
exporter is not a firm covered in this review, a prior review,
or the original less than fair value (LTFV) investigation, but
the manufacturer is, the cash deposit rate will be the rate
established for the most recent period for the manufacturer of
the merchandise; and (3) the cash deposit rate for all other
manufacturers or exporters will continue to be the “all others”
rate of 2.59 percent, which is the “All Others” rate established
in the LTFV investigation. See Notice of Amended Final
Determination of Sales at Less Than Fair Value; Certain
Hot-Rolled Carbon Steel Flat Products From The Nether-
lands, 66 FR 55637 (November 2, 2001). These deposit re-
quirements, when imposed, shall remain in effect until publi-
cation of the final results of the next administrative review.
POR” does not include sales of merchandise which entered during that
same per woe
43a
Notification to Interested Parties
This notice also serves as a final reminder to importers of
their responsibility under 19 CFR 351.402(f)(2) to file a
certificate regarding the reimbursement of antidumping duties
prior to liquidation of the relevant entries during this review
period. Failure to comply with this requirement could result
in the Secretary’s presumption that reimbursement of the
antidumping duties occurred and the subsequent assessment
of double antidumping duties.
This notice also serves as a reminder to parties subject to
administrative protective orders (APOs) of their responsibility
concerning the disposition of proprietary information dis-
closed under APO in accordance with 19 CFR 351.305, that
continues to govern business proprietary information in this
segment of the proceeding. Timely written notification of the
return or destruction of APO materials or conversion to judi-
cial protective order is hereby requested. Failure to comply
with the regulations and the terms of an APO is a sanction-
able violation.
This determination is issued and published in accordance
with sections 751(a)(1) and 777(i)(1) of the Tariff Act.
Dated: June 7, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.
Appendix—Issues in Decision Memorandum
Comment |. Conventional Hot-Rolled Material vs. Direct
Sheet Product
Comment 2. Quality Code
Comment 3. Treatment of Section 201 Tariffs
Comment 4. Treatment of Non-dumped Sales
Comment 5. Gap Period Entries
44a
Comment 6. Cost of Manufacturing
Comment 7. General Expense Ratio
Comment 8. Variable Cost of Manufacturing
Comment 9. CEP Profit Rate
Comment 10. Use of Sale Date vs. Entry Date to Identify EP
Sales
Comment 11. Reporting Period for U.S. Sales
[FR Doc. 04-13495 Filed 6-15-04; 8:45 am]
45a
APPENDIX E
Statutory Citations to be included at end of Corus Appendix
19 U.S.C. § 3533 provides:
Dispute settlement panels and procedures
(a) Review by President
The President shall review annually the WTO panel
roster and shall include the pancl roster and the list of
persons serving on the Appellate Body in the annual re-
port submitted by the President under section 2213(a) of
this title.
(b) Qualifications of appointees to panels
The Trade Representative shall—
(1) seek to ensure that persons appointed to the WTO
panel roster are well-qualified, and that the roster
includes persons with expertise in the subject areas
covered by the Uruguay Round Agreements; and
(2) inform the President of persons nominated to the
roster by other WTO member countries.
(c) Rules governing conflicts of interest
The Trade Representative shall seek the establishment
by the General Council and the Dispute Settlement Body of
rules governing conflicts of interest by persons serving on
panels and members of the Appellate Body and shall
describe, in the annual report submitted under section 3534
of this title, any progress made in establishing such rules.
(d) Notification of disputes
Promptly after a dispute settlement panel is established
to consider the consistency of Federal or State law with any
of the Uruguay Round Agreements, the Trade Represen-
tative shall notify the appropriate congressional commit-
tees of—
46a
(1) the nature of the dispute, including the matters set
forth in the request for the establishment of the panel,
the legal basis of the complaint, and the specific
measures, in particular any State or Federal law cited in
the request for cstablishment of the panel;
(2) the identity of the persons serving on the panel;
and
(3) whether there was any departure from the rule of
consensus with respect to the sclection of persons to
serve on the panel.
(e) Notice of appeals of panel reports
If an appeal is taken of a report of a panel in a pro-
ceeding described in subsection (d) of this section, the
Trade Representative shall, promptly after the notice of
appeal is filed, notify the appropriate congressional com-
mittees of-—
(1) the issues under appeal; and
(2) the identity of the persons serving on the Appellate
Body who are reviewing the report of the panel.
(f) Actions upon circulation of reports
Promptly after the circulation of a report of a panel or of
the Appellate Body to WTO members in a proceeding
described in subsection (d) of this section, the Trade
Representative shall—
(1) notify the appropriate congressional committees of
the report;
(2) in the case of a report of a panel, consult with the
appropriate congressional committees concerning the
nature of any appeal that may be taken of the report; and
(3) if the report is adverse to the United States, consult
with the appropriate congressional committees concern-
ing whether to implement the report’s recommendation
47a
and, if so, the manner of such implementation and the
period of time needed for such implementation.
(g) Requirements for agency action |
(1) Changes in agency regulations or practice
In any case in which a dispute settlement panel or the
Appellate Body finds in its report that a regulation or
practice of a department or agency of the United States
is inconsistent with any of the Uruguay Round
Agreements, that regulation or practice may not be
amended, rescinded, or otherwise modified in the
implementation of such report unless and until—
(A) the appropriate congressional committees have
been consulted under subsection (f) of this section;
(B) the Trade Representative has sought advice re-
garding the modification from relevant private sector
advisory committees established under section 2155
of this title;
(C) the head of the relevant department or agency
has provided an opportunity for public comment by
publishing in the Federal Register the proposed
modification and the explanation for the modification;
(D) the Trade Representative has submitied to the
appropriate congressional committees a report de-
scribing the proposed modification, the reasons for the
modification, and a summary of the advice obtained
under subparagraph (B) with respect to the modif-
cation;
(E) the Trade Representative and the head of the
relevani department or agency have consulted with the
appropriate congressional committees on the proposed
contents of the final rule or other modification; and
48a
(F) the final rule or other modification has been
published in the Federal Register.
(2) Effective date of modification
A final rule or other modification to which paragraph
(1) applies may not go into effect before the end of the
60-day period beginning on the date on which con-
sultations under paragraph (1)(E) begin, unless the
President determines that an earlier effective date is in
the national interest.
(3) Vote by congressional committees
During the 60-day period described in paragraph (2),
the Committee on Ways and Means of the House of
Representatives and the Committee on Finance of the
Senate may vote to indicate the agreement or disagree-
ment of the committee with the proposed contents of the
final rule or other modification. Any such vote shall not
be binding on the department or agency which is
implementing the rule or other modification.
(4) Inapplicability to ITC
This subsection does not apply to any regulation or
practice of the International Trade Commission.
(h) Consultations regarding review of WTO rules and procedures
Before the review is conducted of the dispute settlement
rules and procedures of the WTO that is provided for in the
Decision on the Application of the Understanding on Rules
and Procedures Governing the Settlement of Disputes, as
such decision is set forth in the Ministerial Declarations
and Decisions adopted on April 15, 1994, together with the
Uruguay Round Agreements, the Trade Representative
shali consult with the congressional committees regarding
the policy of the United States concerning the review.
49a
19 U.S.C. § 3538 provides:
Administrative action following WTO panel reports
(a) Action by United States International Trade Commission
(1) Advisory report
If a dispute settlement panel finds in an interim report
under Article 15 of the Dispute Settlement Understanding,
or the Appellate Body finds in a report under Article 17 of
that Understanding, that an action by the International
Trade Commission in connection with a particular pro-
ceeding is not in conformity with the obligations of the
United States under the Antidumping Agreement, the
Safeguards Agreement, or the Agreement on Subsidies and
Countervailing Measures, the Trade Representative may
request the Commission to issue an advisory report on
whether title VII of the Tariff Act of 1930 [19 U.S.C. 1671
et seq.] or title II of the Trade Act of 1974 [19 U.S.C. 2251
et seq.], as the case may be, permits the Commission to
take steps in connection with the particular proceeding that
would render its action not inconsistent with the findings of
the panel or the Appellate Body concerning those obli-
gations. The Trade Representative shall notify the congres-
sional committees of such request.
(2) Time limits for report
The Commission shall transmit its report under para-
graph (1) to the Trade Representative—
(A) in the case of asi interim report described in
paragraph (1), within 30 calendar days after the Trade
Representative requests the report; and
(B) in the case of a report of the Appellate Body,
within 21 calendar days after the Trade Representative
requests the report.
50a
(3) Consultations on request for Commission determination
If a majority of the Commissioners issues an affirmative
report under paragraph (1), the Trade Representative shall
consult with the congressional committees concerning the
matter.
(4) Commission determination
Notwithstanding any provision of the Tariff Act of 1930
[19 U.S.C. 1202 et seq.] or title Il of the Trade Act of 1974
[19 U.S.C. 2251 et seq.], if a majority of the Commis-
sioners issues an affirmative report under paragraph (1),
the Commission, upon the written request of the Trade
Representative, shall issue a determination in connection
with the particular proceeding that would render the Com-
mission’s action described in paragraph (1) not inconsistent
with the findings of the panel or Appellate Body. The
Commission shall issue its determination not later than 120
days after the request from the Trade Representative is
made.
(5) Consultations on implementation of Commission
determination
The Trade Representative shall consult with the
congressional committees before the Commission’s
determination und<r paragraph (4) is implemented.
(6) Revocation of order
If, by virtue of the Commission’s determination under
paragraph (4), an antidumping or countervailing duty order
with respect to some or all of the imports that are subject to
the action of the Commission described in paragraph (1) is
no longer supported by an affirmative Commission deter-
mination under title VII of the Tariff Act of 1930 [19
U.S.C. 1671 et seq.] or this subsection, the Trade Repre-
sentative may, after consulting with the congressional
committees under paragraph (5), direct the administering
S5la
authority to revoke the antidumping or countervailing duty
order in whole or in part.
(b) Action by administering authority
(1) Consultations with administering authority and con-
gressional committees
Promptly after a report by a dispute settlement panel or
the Appellate Body is issued that contains findings that an
action by the administering authority in a proceeding under
title Vil of the Tariff Act of 1930 [19 U.S.C. 1671 et seq.]
is not in conformity with the obligations of the United
States under the Antidumping Agreement or the Agree-
ment on Subsidies and Countervailing Measures, the Trade
Representative shall consult with the administering author-
ity and the congressional committees on the matter.
(2) Determination by administering authority
Notwithstanding any provision of the Tariff Act of 1930
[19 U.S.C. 1202 et seq.], the administering authority shall,
within 180 days after receipt of a written request from the
Trade Representative, issue a determination in connection
with the particular proceeding that would render the
administering authority’s action described in paragraph (1)
not inconsistent with the findings of the panel or the
Appellate Body.
(3) Consultations before implementation
Before the administering authority implements any de-
termination under paragraph (2), the Trade Representative
shall consult with the administering authority and the con-
gressional committees with respect to such determination.
(4) Implementation of determination
The Trade Representative may, after consulting with the
administering authority and the congressional committees
under paragraph (3), direct the administering authority to
52a
implement, in whole or in part, the determination made
under paragraph (2).
(c) Effects of determinations; notice of implementation
(1) Effects of determinations
Determinations concerning title VII of the Tariff Act of
1930 [19 U.S.C. 1671 et seq.] that are implemented under
this section shall apply with respect to unliquidated entries
of the subject merchandise (as defined in section 771 of
that Act [19 U.S.C. 1677]) that are entered, or withdrawn
from warehouse, for consumption on or after—
(A) in the case of a determination by the Commission
under subsection (a)(4) of this section, the date on which
the Trade Representative directs the administering
authority under subsection (a)(6) of this section to
revoke an order pursuant to that determination, and
(B) in the case of a determination by the administering
authority under subsection (b)(2) of this section, the date
on which the Trade Representative directs the admin-
istering authority under subsection (b)(4) of this section
to implement that determination.
(2) Notice of implementation
(A) The administering authority shall publish in the
Federal Register notice of the implementation of any
determination made under this section with respect to
title VII of the Tariff Act of 1930 [19 U.S.C. 1671 et
seq. ].
(B) The Trade Representative shal! publish in the
Federal Register notice of the implementation of any
determination made under this section with respect to
title I] of the Trade Act of 1974 [19 U.S.C. 2251 et seq.].
53a
(d) Opportunity for comment by interested parties
Prior to issuing a determination under this section, the
administering authority or the Commission, as the case may
be, shall provide interested parties with an opportunity to
submit written comments and, in appropriate cases, may hold
a hearing, with respect to the determination.
54a
APPENDIX F
UNITED STATES COURT OF APPEALS FOR THE
FEDERAL CIRCUIT
05-1600
Corus STAAL BV,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee,
and
UNITED STATES STEEL CORPORATION,
Defendant-Appellee.
Appeal from the United States Court of International Trade
in case no. 04-00316, Chief Judge Jane A. Restani.
PETITION FOR REHEARING EN BANC BY
PLAINTIFF-APPELLANT CORUS STAAL BV
RICHARD O. CUNNINGHAM
JOEL D. KAUFMAN
ALICE A. KIPEL
JAMIE B. BEABER
STEPTOE & JOHNSON
1330 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 429-6288
Counsel for Plaintiff-Appellant
July 28, 2006 Corus Staal BV
5Sa
UNITED STATES COURT OF APPEALS FOR THE
FEDERAL CIRCUIT
CORUS STAAL BY v US, 05-1600
CERTIFICATE OF INTEREST
Counsel for Plaintiff-Appellant Corus Staal BY certifies
the following:
1. The full name of every party or amicus represented by
me is:
Corus Staal,
2. The name of the real party in interest (if the party
named in the caption is not the real party in interest)
represented by me is:
None
3. All parent corporations and any publicly held compa-
nies that own 10 percent or more of the stock of the party
or amicus curiae represented by me are:
Corus Staal BV is 100% owned by Corus Investment
BV, which is 100% owned by Corus Nederland BV
(formerly Koninklijke Hoogovens NV), which in turn is
100% owned by Corus Group plc, a publicly owned and
traded company on the British stock market.
4.The names of all law firms and the partners or
associates that appeared for the party or amicus now
represented by me in the trial court or agency or are
expected to appear in this court are:
Richard 0. Cunningham, Esq., Alice A. Kipel, Esq.,
and Joel D. Kaufman, Esq. of the law firm of Steptoe
& Johnson LLP, and Troy H. Cribb, Esq., formerly of
the law firm of Steptoe & Johnson LLP, represented
the Appellant at the Court of International Trade. Mr.
Cunningham, Ms. Kipel and Mr. Kaufman, as well as
56a
Jamie B. Beaber, Esq., also of Steptoe & Johnson
LLP, are expected to appear in this proceeding.
July 28, 2006 /s/ Joel D. Kaufman
JOEL D. KAUFMAN
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 429-6288
Counsel for Plaintiff-Appellant
Corus Staal BV
57a
TABLE OF CONTENTS
STATEMENT OF COUNSEL IN SUPPORT OF
I.
II.
RESCIND CAPE SORT Pic ccnisedvnnevnistivniinieseineiecibiainens
POINTS OF LAW OR FACT THAT WERE
OVERLOOKED OR MISAPPREHENDED ..........
ARGUMENT IN SUPPORT OF REHEARING
CORO EETEEH OEE EEN OCTETS HEHEHE EEO HEEEHEEEE EEE ESE EEEEEEH HED EEE EE EES
. The Panel Misapprehended or Ignored the
Significance of Commerce’s Proposed Change
Se ee IIE aciitiiniestee-ceseticiateakemnbinplaleicnk
. Commerce’s Decision To Abandon the Zero-
ing Methodology that Produced the Anti-
dumping Order on Which the Authority for the
Appealed Administrative Review Rests
I Oe i scscinicasikntiscadeicensaszessasctiesecbvients
. The Change in Methodology Proposed by
Commerce Will Be Applied to the Inves-
tigation and Order in this Proceeding.................
. The Pancl Misapprehended this Court’s Man-
date that Implementation of WTO Decisions
Must Be Left Exclusively to the Executive
Page
12
58a
TABLE OF AUTHORITIES
CASES Page
Corus Staal BV v. Dept of Commerce, 395 F.3d
1343 (Fed. Cir. 2005), cert. denied, 126 S. Ct.
RF ea datctnasinthcnigicrsidloniionlabvcedenmibeetedeianin passim
Nat’! Fuel Gas Supply Corp. v. FERC, 899 F.2d
Fe erase, Gals Fe cnsiierachcesiicedeecneianieniiiansnnasies 8
NLRB v. Food Store Employees Union. Local
ET ET Re 8 Re ite nineties 1,4,8
Panhandle E. Pipeline Co. v. FERC, 890 F.2d
a, Gis Se iireiesiicisecenaischiaguinebiieidediagiaien 1, 7-8
PS Chez Sidney, L.L.C. v. United States Intl
Trade Comm’n, Slip Op. 06-103 (CIT July 13,
P| SCRE ke ieE nN miee Tne Piero SR Real setae 10
Timken Co. v. United States, 354 F.3d 1334 (Fed.
Cir.), cert. denied, 543 U.S. 976 (2004) ............ 5
WTO DISPUTE SETTLEMENT DOCUMENTS
Panel Report, United States Laws, Regulations
and Methodology for Calculating Dumping
Margins, WT/DS294/R (Oct. 31, 2005), as
amended by Appcllate Body ‘Report, WT/
DS294/AB/R (Apr. 18, 2006)............cceeeeeeeeeees passim
Second Written Submission of the United States,
United States—Section 129(c)(1) of the
Uruguay Round Agreements Act WT/DS221,
19 (Mar. 8, 2002), available at http://www.
ustr.govirrade_Agreements/Monitoring Enfor
cement/Dispute_Settlernent/WTO/Dispute_
Settlement_JIndex_-_Concluded.html................ 11
United States—Laws Regulations and Method-
ology for Calculating Dumping Margins,
Communication by the United States § 12
(May 30, 2006), updated version available at
http://www.wto.orgienglishitratop ¢/disp_ eica
SE DUI BR ie eirhccteccricsnctncsrieendinciniess 6, 10
59a
TABLE OF AUTHORITIES
| DEPARTMENT OF COMMERCE PROCEEDINGS _ Page
Antidumping Proceedings: Calculation of the
Weighted Average Dumping Margin During
an, Antidumping Duty Investigation, 71 Fed.
Reg. 11,189 (Dep’t Commerce Mar. 6, 2006)... 8
Notice of Determination Under Section 129 of
the Uruguay Round Agreements Act: Anti-
dumping Measures on Certain Softwood
Lumber Products from Canada, 70 Fed Reg.
» 22,636 (Dep’t Commerce May 2, 2005)............ 9-10
Notice of Final Modification of Agency Practice
Under Section 123 of the Uruguay Round
Agreements Act, 68 Fed. Reg. 37,125 (Dep’t
COMINGS FUND Z5,. GOS) sascicssivinictintisaivntdsweznns 13
Notice of Implementation Under Section 129 of
the Uruguay Round Agreements Act: Counter-
vailing Measures Concerning Certain Steel
Products from the European Communities, 68 _
Fed. Reg. 64,858, 64,858 (Dep’t Commerce
5 Naa I nN 13
STATUTES
19 U.S.C. § 1673b(b)(3) (2000) ......ceccceesseecseesseees 9
USC. 6 BUCS)... 13
ID UGC. § SSSR I DOOD) osc incecccceelarccccass 13
WTO AGREEMENTS
WTO Understanding on Rules and Procedures
Governing the Settlement of Disputes, Art. 21,
SIDI: Fs ccscounchidechscndnecieatxckbinecnemetansinannaeh mela 6-7, 14
RULES
D lil ¢ 22 sinteiintiiedninontminuiaananin 3
FF FE OO iccsscrtisviaaticcentiiimenias k
60a
TABLE OF AUTHORITIES
MISCELLANEOUS Page
Press Release, U.S. Mission to the United Na-
tions, U.S. Statement at the WTO Dispute
Settlement Body Meeting (May 30, 2006),
available at http://www.us-mission.chiPress
EEE FLPOOMNINUEN vcs cen sccesssvsvecnesecsooeees Scihaiaanies 6
6la
STATEMENT OF COUNSEL IN SUPPORT OF
REHEARING EN BANC
Based on my professional judgment, I believe that the
panel decision in Corus Staal BV v. United States, Appea!
No. 05-1600, is contrary to the following decisions of the
U.S. Supreme Court and the precedents of this and other
courts of appeal: NLRB v. Food Store Employees Union Local
347, 417 U.S. 1 (1974) (“Food Store Employees”), Pan-
handle E. Pipeline Co. v. FERQ, 890 F.2d 435 (D.C. Cir.
1989)(“Panhandle E. Pipeline Co.”); and Corus Staal BV vy.
Dept of Commerce, 395 F.3d 1343 (Fed. Cir. 2005), cert.
denied, 126 S. Ct. 1023 (2006) (“Corus Staal I’).
In addition, based on my professional judgment, I believe
this appeal requires an answer to precedent-setting questions
that are of exceptional importance because they involve
action by the Court in an area that this Court itself has
determined to be “the exclusive province” of the Executive
Branch:
(1) May the Court ignore the intervening change in zeroing
policy by the U.S. Department of Commerce (“Commerce”),
without remanding to permit Commerce to determine whether
that change in policy, in conjunction with Commerce’s on-
going implementation of the decision as to this antidumping
proceeding by the World Trade Organization (“WTO”) in
US-Zeroing,' will require reversal of the administrative
review decision that is the subject of this appeal; and
(2) May the Court reach a decision, without first remanding
to the administrative agency, on issues that are the subject of
a WTO dccision and as to which not only has the United
States announced its intention to implement the WTO de-
' Panel Report, United States—Laws, Regulations and Methodology for
Calculating Dumping Margins, WT/DS294/R ¢Oct. 31, 2005)(“Panel
Report’), as amended by Appellate Body Report, WT/DS294/AB/R (A
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.